Western Energy Alliance v. Salazar

FILED
United States Court of Appeals
Tenth Circuit

March 12, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

WESTERN ENERGY ALLIANCE; BASELINE
MINERALS, INC.; NERD GAS COMPANY,
LLC; SAMSON RESOURCES COMPANY,

Plaintiffs-Appellants,

DOUBLE DEUCE LAND AND MINERALS,
INC.; WOLD OIL PROPERTIES, INC.;
LARAMIE ENERGY II, LLC,

Plaintiffs,

AMERICAN PETROLEUM INSTITUTE,

Plaintiff-Intervenor,

v.
No. 11-8071
KEN SALAZAR, in his official capacity as
Secretary of the United States Department of
the Interior; UNITED STATES
DEPARTMENT OF THE INTERIOR;
BUREAU OF LAND MANAGEMENT; DON
SIMPSON, in his official capacity as Bureau of
Land Management, Wyoming State Director;
JUAN PALMA, in his official capacity as
Bureau of Land Management, Utah State
Director; ROBERT ABBEY, in his official
capacity as Bureau of Land Management
Director,

Defendants-Appellees,

WYOMING OUTDOOR COUNCIL;
 WILDERNESS SOCIETY; NATIONAL
WILDLIFE FEDERATION; SOUTHERN
UTAH WILDERNESS ALLIANCE;
NATURAL RESOURCES DEFENSE
COUNCIL, INC.; NATIONAL AUDUBON
SOCIETY; BIODIVERSITY
CONSERVATION ALLIANCE; GREATER
YELLOWSTONE COALITION; CENTER
FOR NATIVE ECOSYSTEMS,

Defendant-Intervenors-Appellees.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 2:10-CV-00226-NDF)

Rebecca W. Watson (Kathryn Haight, Stephen A. Bain, and Nora R. Pincus with
her on the briefs) of Welborn Sullivan Meck & Tooley, PC, Denver, Colorado, for
Plaintiffs-Appellants.

Melanie R. Kay (Robin L. Cooley on the brief) of Earthjustice, Denver, Colorado,
for Defendants-Intervenors-Appellees.

Vivian H.W. Wang, Attorney, Environment and Natural Resources Division, U.S.
Department of Justice, Washington, D.C. (Robert Dreher, Acting Assistant
Attorney General; and Joanna Brinkman and David C. Shilton, Attorneys,
Environment and Natural Resources Division, U.S. Department of Justice,
Washington, D.C., with her on the brief) for Federal Defendants-Appellees.

Before MURPHY, SEYMOUR, and HOLMES, Circuit Judges.

SEYMOUR, Circuit Judge.

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 This litigation concerns whether the Mineral Leasing Act (“the Act” or

“MLA”), as amended by the Reform Act of 1987, requires the Secretary of the

Interior (“the Secretary”) to issue leases for parcels of land to the highest bidding

energy company within sixty days of payment to the Bureau of Land Management

(“BLM”). Appellants (collectively “Energy Companies”) brought suit seeking to

compel the Secretary to issue 118 pending leases on which they were the high

bidders and more than sixty days had passed since they had paid BLM in full.

The district court construed 30 U.S.C. § 266(b)(1)(A) as imposing a mandate on

the Secretary to decide whether to issue such pending oil and gas leases within

sixty days of payment, and ordered BLM to make such decisions regarding the

still pending leases of Energy Companies within thirty days. Energy Companies

appeal the district court’s order and continue to assert that § 266(b)(1)(A)

requires the Secretary to issue such pending leases within sixty days rather than

merely make a decision on whether the leases will be issued. We hold that the

district court’s order was not a “final decision” for purposes of 28 U.S.C. § 1291.

Accordingly, under the administrative-remand rule we lack jurisdiction and

DISMISS the appeal.

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 I.

STATUTORY AND REGULATORY BACKGROUND

The MLA and accompanying regulations establish the procedures for

development of oil and gas deposits on federal land. 1 The Secretary has authority

under the Act to lease all federal lands “which are known or believed to contain

oil or gas deposits.” 30 U.S.C. § 226(a). BLM state offices administer these

leases through lease sales. The lease sales at issue in this case are competitive

lease sales, where entities bid at an auction and the highest bidder wins the ability

to lease parcels for oil and gas development. Id. § 226(b)(1)(A) (“The Secretary

shall accept the highest bid from a responsible qualified bidder which is equal to

or greater than the national minimum acceptable bid . . . .”). Parcels that will be

auctioned are identified by the BLM in a public Notice of Competitive Lease Sale

(“Sale Notice”).

Prior to issuing a Sale Notice, parcels are reviewed by BLM field offices to

determine conformance with the applicable Resource Management Plan (“RMP”).

RMPs are area-wide land use plans that specify which areas will be considered for

oil and gas development and what conditions will be placed on such development.

If the lands are determined to be available for oil and gas development under the

1
The Mineral Leasing Act of 1920 (Pub. L. No. 66-146), as amended, and
the Mineral Leasing Act for Acquired Lands (Pub. L. No. 80-382), as amended,
provide the legislative authority and framework for federal oil and gas leasing.
BLM’s implementing regulations are located at 43 C.F.R. pt. 3100.

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applicable RPM, the BLM field office conducts an interdisciplinary team review

of the parcels, focusing on conflicts with wildlife, habitat, wilderness, land

characteristics, planning and other resource values. The interdisciplinary team

also evaluates whether new and significant information has emerged since the

RMP was adopted that would require further analysis of the environmental impact

of oil and gas development on the parcels under the National Environmental

Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., or whether a determination of

NEPA adequacy can be issued. If the NEPA analysis is determined to no longer

be valid, the BLM field office will perform an environmental assessment before

the lease sale. These pre-leasing review processes can result in parcel rejections,

deferrals, and/or stipulations being placed on the leases. See 43 C.F.R. §3101.1-3

(“The authorized officer may require stipulations as conditions of lease

issuance.”).

After these review procedures have been completed, BLM identifies

eligible parcels in a Sale Notice, which must be published at least forty-five days

before the lease sale takes place. The process of publishing the notice includes a

public protest period during which individuals and organizations may file a

protest against the inclusion of any or all parcels in the Sale Notice. It is not

unusual for BLM to receive protests very close to the date of the sale. If BLM

decides to include a protested parcel in the sale, the pending protests are

announced at the beginning of the oral auction.

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 The Sale Notice informs prospective bidders that parcels which are

auctioned subject to protest can have further stipulations added to them after the

auction, or be withdrawn altogether by BLM. Fed. App. 61 (Notice of

Competitive Oil and Gas Lease Sale, August 3, 2010). The high bidder must pay

the bid amount to the BLM if it chooses to go forward despite a pending protest.

The Sale Notice and the BLM manual also state that protests “must be resolved

before issuance of the involved lease.” Id. (emphasis in original); Fed. App. 123

(BLM manual). According to the Sale Notice, BLM “will make every effort to

decide the protest within 60 days after the sale.” Fed App. 61 (Notice of

Competitive Oil and Gas Lease Sale, August 3, 2010). Due to the complexity,

numerosity and timing of the protests, however, many leases that are subject to

pending protests are not issued within sixty days of payment. 2 If a protested

parcel is subsequently withdrawn from leasing, the high bidder is refunded all of

the payments it has made to BLM for that parcel. If new stipulations are added to

the lease as a result of the protest, the high bidder is given the opportunity to

accept the modified lease or reject it and receive a refund. Id.

Before the MLA was amended by the Federal Onshore Oil and Gas Leasing

2
A 2010 report by the Government Accountability Office found that during
fiscal years 2007-2009, seventy-four percent of lease parcels that were subject to
competitive bidding were protested, and ninety-one percent of these protested
parcels were not issued within sixty days. “Onshore Oil and Gas: BLM’s
Management of Public Protests to Its Lease Sales Needs Improvement,” GAO-10-
670 (http://www.gao.gov/products/GAO-10-670), Aplt. App. at 65.

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Reform Act of 1987 (“Reform Act”), 3 it was well established that the Secretary

had extremely broad discretion and was not obligated to issue any lease on public

lands. See Udall v. Tollman, 380 U.S. 1, 4 (1965) (even though the MLA

“directed that if a lease were issued on such a tract, it had to be issued to the first

qualified applicant, it left the Secretary discretion to refuse to issue any lease at

all on a given tract”). We consistently affirmed the broad discretion afforded to

the Secretary under the MLA. In Justheim Petroleum Co. v. Dep’t of the Interior,

769 F.2d 668 (10th Cir. 1985), a case arising in the non-competitive bidding

context, we held that “the Secretary is under no requirement to issue or reject

lease applications within a certain time limit.” Id. at 670. Similarly, in

McDonald v. Clark, 771 F.2d 460 (10th Cir. 1985), we concluded that the

Secretary had the discretion to withdraw a lease from the non-competitive leasing

process even after he had determined the first qualified applicant. Id. at 463. We

held that until the Secretary actually acts to issue the lease, the applicant has only

a “hope or . . . expectation of a lease” and not a vested right. Id.

The MLA, as amended by the Reform Act of 1987, continues to vest the

Secretary with considerable discretion to determine which lands will be leased.

Under 30 U.S.C. § 226(a), “[a]ll lands subject to disposition under this chapter

which are known or believed to contain oil or gas deposits may be leased by the

3
The 1987 Federal Onshore Oil and Gas Leasing Reform Act of 1987, Pub.
L. No. 100-203, tit. V, § 5101(a), 101 Stat. 1330 (1987) (codified as amended at
30 U.S.C. § 181, et seq.).

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Secretary,” (emphasis added) and the Secretary still retains the authority to

determine which lands are “to be leased” under § 266(b)(1)(A). The Reform Act

did, however, change the federal onshore leasing process in several respects,

including shifting the majority of leases previously offered through a non-

competitive bidding process to a competitive bidding process (which explains

why virtually all of our pre-Reform Act cases arose in the context of non-

competitive bidding). The Reform Act also added the sentence that is at issue in

the instant litigation, inserting the requirement that in the competitive bidding

context, “[l]eases shall be issued within sixty days following payment by the

successful bidder of the remainder of the bonus bid, if any, and the annual rental

for the first lease year.” 30 U.S.C. § 226(b)(1)(A).

II.

FACTUAL AND PROCEDURAL BACKGROUND

Energy Companies were the highest qualified bidders on 118 oil and gas

leases at ten competitive lease sales held by BLM between 2005 and 2010. In

accordance with 30 U.S.C. § 226(b)(1)(A), they paid BLM a bonus bid, one year’s

rent, and administrative fees for the leases on which they were high bidders.

BLM collected a total of $2,017,144.50 for the leases purchased by Energy

Companies. Before the parcels were put up for auction, the Environmental

Intervenors (“Conservation Groups”) had filed protests regarding all 118 parcels.

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These pending protests were announced before each parcel was auctioned. In

accordance with the BLM manual and the Sale Notices, BLM deferred issuing the

leases pending resolution of the protests.

In late 2010, Energy Companies filed suit under the MLA, 30 U.S.C. § 226,

Administrative Procedure Act, 5 U.S.C. § 706(1), Mandamus Act, 28 U.S.C. §

1361, and Declaratory Judgment Act, 28 U.S.C. § 2201, against the Secretary of

the Interior and a number of other federal defendants (collectively “Federal

Defendants”) seeking to compel BLM to issue these pending leases for which

Energy Companies were high bidders and had submitted payment in accordance

with BLM policy. Energy Companies challenge BLM’s practice of offering oil

and gas leases for sale, accepting payment from the top qualified bidders, and

then deferring issuance of those leases pending resolution of pre-bid lease

protests, a delay that in some instances can last for years and may ultimately

result in stipulations being placed on the leases or the land being closed to leasing

entirely. Energy Companies contend that the Secretary must issue all leases

within sixty days of payment, regardless of any pending protests. None of the

118 leases that are the subject of this suit were issued within sixty days of

payment.

The district court did not accept Energy Companies’ argument that §

226(b)(1)(A) requires the Secretary to issue all leases within sixty days of

payment. Western Energy Alliance v. Salazar, 2011 WL 3737520 at *6 (D. Wyo.

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June 29, 2011). Noting the “longstanding recognition of the legal principle of

broad Secretarial discretion under the MLA,” Id. at *5, the court stated that even

after payment to BLM has been made, “[a] top qualified bidder has no legal claim

for, nor any vested right to the issuance of [a] federal oil and gas lease . . . .” Id.

at *3. The court found that even under the Reform Act, the Secretary’s discretion

to decide not to issue any lease “does not terminate until the Secretary indicates

his acceptance of an application or an offer by issuance of the lease ‘with the

signature of the appropriate officer affixed thereto.’” Id. at *5 (quoting Justheim,

769 F.2d at 672). Reasoning that “the sixty-day provision interjected within

Section 226(b)(1)(A) by the Reform Act must mean something,” Id. at *6

(emphasis in original), the district court held that “the successful bidder does

have a right to a final decision by the federal respondents on whether the lands

are or are not ‘to be leased’ within sixty days of payment . . . .” Id. at *4. Thus,

the court concluded, “the Secretary has exceeded his authority, but not by

disregarding the Reform Act’s 60-day lease-issuance mandate, but by

disregarding the Reform Act’s 60-day decisional mandate.” Id. at *6 (emphasis in

original). The court remanded the case to BLM, ordering the agency to “take

action on the nine (9) withheld Wyoming leases and the thirty-eight (38) withheld

Utah leases within thirty (30) days,” 4 since the sixty-day time period after

4
Of the original 118 contested leases that were pending when Energy
Companies initiated this action, all but forty-seven had been issued when the
district court entered its order.

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payment had “long expired.” Id. at *7. Energy Companies filed a notice of

appeal.

In the meantime, BLM began complying with the district court’s order on

remand. The high bidders on the nine Wyoming leases, Nerd Gas Company LLC

and Baseline Minerals, Inc., decided not to wait for BLM to make a decision on

those parcels and instead chose to have BLM reject their bids and receive a full

refund. For the remaining thirty-eight parcels in Utah, BLM offered leases with

additional protective stipulations to the high bidder, Baseline Minerals, but

Baseline chose not to accept the leases and BLM then rejected their bids and

refunded all payments. Both Baseline Minerals and Nerd Gas filed administrative

appeals with the Interior Board of Land Appeals (“IBLA”) challenging the

rejection of their bids, but they requested the IBLA to suspend their appeals

pending the outcome of the instant appeal.

Energy Companies appeal the district court’s interpretation of 30 U.S.C. §

226(b)(1)(A), arguing the court erroneously construed the plain language of the

statute, which they contend requires that the Secretary issue all leases, not merely

decide whether to issue them, within sixty days of payment. Highlighting

§ 226(b)(1)(A)’s instruction that “[l]eases shall be issued within 60 days

following payment of the successful bidder” (emphasis added), Energy

Companies cite Forest Guardians v. Babbitt for the proposition that “when a

statute uses the word ‘shall,’ Congress has imposed a mandatory duty upon the

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subject of the command.” 174 F.3d 1178, 1187 (10th Cir. 1999) (citing United

States v. Monsanto, 491 U.S. 600, 607 (1989)). Energy Companies claim that by

enacting the Reform Act of 1987, Congress intended to limit the scope of the

Secretary’s discretion. By this logic, the Reform Act ends the Secretary’s ability

to decide not to lease a parcel once payment has been made by the winning

bidder, and cases holding to the contrary that were decided before the MLA was

amended by the Reform Act are inapposite.

The Federal Defendants and Conservation Groups ask us to uphold the

district court’s conclusion that § 226(b)(1)(A) imposes a sixty-day timeframe

from when payment is made by the high bidder within which the Secretary must

decide whether the parcel is “to be leased.” Federal Defendants rely, in part, on

the broad discretion granted to the Secretary in § 226(a), which establishes that

“[a]ll lands subject to disposition under this chapter which are known or believed

to contain oil or gas deposits may be leased by the Secretary.” 30 U.S.C § 226(a)

(emphasis added). Because the Reform Act did not alter or remove this broad

grant of discretion to the Secretary, Federal Defendants argue that Congress

intended to continue to grant the Secretary discretionary power rather than create

a positive mandate to issue leases.

In addition to the merits issues, Conservation Groups, with the support of

Federal Defendants, filed a motion to dismiss Energy Companies’ appeal for lack

of jurisdiction. First, they argue that we have no jurisdiction over the majority of

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the claims because they are moot. They highlight that of the 118 leases that were

pending when the lawsuit was first brought by Energy Companies, seventy-one

have now been issued to the high bidders. As a result, they contend, the failure of

BLM to act, which was the basis of this suit, has been remedied as to these

seventy-one claims and they should be dismissed as moot. Second, they assert

that the administrative-remand rule bars jurisdiction over Energy Companies’

appeal regarding the remaining forty-seven leases that were not issued to the high

bidders.

III.

JURISDICTION

“[J]urisdiction is a threshold question which an appellate court must resolve

before addressing the merits of the matter before it.” Timpanogos Tribe v.

Conway, 286 F.3d 1195, 1201 (10th Cir. 2002) (citing Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83 (1998)). Our jurisdiction is grounded in statute.

Century Laminating, Ltd. v. Montgomery, 595 F.2d 563, 565 (10th Cir. 1979).

Absent a specific statutory grant of jurisdiction over a particular type of dispute,

we exercise jurisdiction over final decisions of the federal district courts pursuant

to 28 U.S.C. § 1291. Bender v. Clark, 744 F.2d 1424, 1426 (10th Cir. 1984). A

final decision is one “that ends the litigation on the merits and leaves nothing for

the court to do but execute the judgment.” Coopers & Lybrand v. Livesay, 437

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U.S. 463, 467 (1978) (internal quotation marks omitted). “The purpose of the

finality requirement is to avoid piecemeal review.” Bender, 744 F.2d at 1426.

Administrative Remand Rule

It is well settled law that “[t]he remand by a district court to an

administrative agency for further proceedings is ordinarily not appealable because

it is not a final decision.” Bender, 744 F.2d at 1426-27; accord Southern Utah

Wilderness Alliance (SUWA) v. Kempthorne, 525 F.3d 966, 970 (10th Cir. 2008);

Trout Unlimited v. U.S. Dept. of Agric., 441 F.3d 1214, 1218 (10th Cir. 2006);

N.C. Fisheries Ass’n v. Gutierrez, 550 F.3d 16, 19 (D.C. Cir. 2008) (“It is black

letter law that a district court’s remand order is not normally ‘final’ for purposes

of appeal under 28 U.S.C. § 1291.”). This general principle has been called the

“administrative-remand rule.” Trout Unlimited, 441 F.3d at 1218 (internal

citation omitted).

Energy Companies contend the administrative-remand rule is not implicated

in the instant matter, relying heavily on New Mexico ex rel. Richardson v. Bureau

of Land Mgmt., 565 F.3d 683 (10th Cir. 2009). We conclude, however, that

Richardson is distinguishable and the administrative-remand rule does apply here.

In Richardson, the State of New Mexico and a coalition of environmental

groups challenged, on several different bases, the procedures used by BLM in

opening a publicly-owned desert area to oil and gas development. The district

court rejected most of the plaintiffs’ claims, but held that BLM had violated

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NEPA by failing to do a site-specific environmental analysis. Id. at 695. The

district court ordered BLM to analyze the likely environmental impacts of leasing

if it decided to move forward with its plan to lease the area. Id. Both the

plaintiffs and the oil and gas company intervenors appealed, and BLM argued that

under the administrative-remand rule we lacked jurisdiction to hear the appeals.

Id. at 696.

We held we had jurisdiction because the district court’s order was not a

“remand” in the typical sense and was instead a “final decision” under 28 U.S.C.

§ 1291, thereby rendering the administrative-remand rule inapplicable. 565 F.3d

at 699. In determining whether the district court’s order was a final decision, we

considered “the nature of the agency action as well as the nature of the district

court’s order.” Id. at 697 (citing 15B Wright, Miller & Cooper, Federal Practice

and Procedure: Jurisdiction § 3914.32, at 237 (2d ed. 1992) (hereinafter Wright &

Miller)).

Regarding the agency action, we noted that “[t]ypically, a ‘remand’ from a

district court to an agency occurs when an agency has acted in an adjudicative

capacity[,]” id., but the BLM in Richardson had been acting in a “quasi-

legislative” capacity in developing a Resource Management Plan. Id. at 698. We

explained that “[j]udicial review of administrative action comes in many forms.

The administrative action may be essentially adjudicatory, essentially legislative,

or some nonadversarial action such as grant of a license. The issue of finality is

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affected by the nature of the administrative proceeding . . . .” Id. at 697-98

(quoting 15B Wright & Miller § 3914.32, at 237). “[O]ur precedent indicates that

we view the remand rule as most appropriate in adjudicative contexts.” Id. at

698.

We also highlighted that the district court’s order in Richardson was

different from a typical “remand” because “BLM appeared in the district court as

a traditional adversarial party, defending its own actions against challenges by the

State [and the intervenors], rather than defending a ruling made by the Agency in

a controversy between parties appearing before it.” Id. at 698. The nature of the

court’s order further differed from a typical “remand” because it “did not require

BLM to recommence a proceeding, or indeed to take any action at all–it simply

enjoined BLM from further NEPA violations.” Id. at 698. We explained that the

court’s order had “all the requisite components of a final order: It resolved all

issues and granted the plaintiffs relief, enjoining issuance of the . . . lease until

such analysis is complete.” Id. at 697. As further support for concluding that the

order was appealable under § 1291, we noted that this court has “often treated

district court orders requiring further agency action under NEPA as final and

reviewable.” Id.

The facts of the instant matter differ markedly from Richardson in several

important respects. We recognized in Richardson that in contrast to the quasi-

legislative action of preparing an RMP, agency permitting “falls closer to the

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traditional concept of adjudication . . . because it settles the rights of specific

parties.” Id. at 699 n.17. The agency action in question here, making a

determination on a particular entity’s lease application, similarly “settles the

rights of specific parties” in a manner that the agency action in Richardson did

not. Accordingly, the remand here falls much closer to the realm of a “typical

remand” than the challenged action in Richardson. See 1 Richard J. Pierce,

Administrative Law Treatise, § 6.1, at 403 (5th ed. 2010) (“What distinguishes

legislation from adjudication is that the former affects the rights of individuals in

the abstract and must be applied in a further proceeding before the legal position

of any particular individual will be definitively touched by it; while adjudication

operates concretely upon individuals in their individual capacity.”) (internal

quotation marks omitted).

In addition, we stressed in Richardson that the district court’s decision was

not a remand in the ordinary sense because it did not require that the agency take

any further action. In contrast, here the district court ordered BLM to “take

action on the nine withheld Wyoming leases and the thirty-eight withheld Utah

leases within thirty (30) days.” Western Energy Alliance, 2011 WL 3737520 at

*7. This order clearly constitutes a remand to the agency for further action,

which in and of itself makes a strong case for why the reasoning of Richardson is

inapplicable here.

Energy Companies attempt to distinguish this appeal from cases in which

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we have applied the administrative-remand rule by stressing that they are

challenging BLM’s inaction, rather than challenging a particular adjudication or

leasing decision of the agency. While it is true that our other decisions applying

the administrative-remand rule involved challenged agency action as opposed to

the challenged inaction here, Energy Companies do not offer any persuasive

reason or cite any cases to explain why this distinction should control whether the

district court’s order is considered final under § 1291. The fact remains that

issuing specific leases falls into the category of “quasi-adjudicative” agency

action and the district court remanded the matter to BLM to make decisions on

the withheld lease applications within thirty days of the order. In sum, this case

falls under the administrative-remand rule.

Exceptions to the Administrative-Remand Rule

We have recognized that “the administrative-remand rule is not without

exception.” Trout Unlimited, 411 F.3d at 1218 (internal quotation marks

omitted); see also Bender, 744 F.2d at 1427 (stating administrative-remand rule

“is not to be applied if it would violate basic judicial principles”); 15B Wright, &

Miller §3914.32, at 237-44 (2d ed. 1992) (discussing exceptions to general rule

that remand to an agency is not appealable as a final decision). The “collateral

order” doctrine is one of those exceptions. See Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 546 (1949). “To establish jurisdiction under the

collateral order doctrine, defendants must establish that the district court’s order

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(1) conclusively determined the disputed question, (2) resolved an important issue

completely separate from the merits of the case, and (3) is effectively

unreviewable on appeal from a final judgment.” Gray v. Baker, 399 F.3d 1241,

1245 (10th Cir. 2005).

The district court’s order in this case does not satisfy the requirements of

this doctrine. First, the court’s decision regarding the interpretation of 30 U.S.C.

§ 226(b)(1)(A) did not decide an issue “completely separate from the merits of

the case,” it decided the issue at the very center of the merits of the case. Second,

the district court’s decision is not unreviewable, as evidenced by the pending

appeal by Nerd Gas and Baseline Minerals before the IBLA. Thus, the collateral

order doctrine does not provide Energy Companies a path around the

administrative-remand rule.

Courts have also applied a “practical finality” rule that is more flexible

than the collateral order doctrine in terms of what can constitute a final order

under 28 U.S.C. § 1291. As the Supreme Court said, “our cases long have

recognized that whether a ruling is ‘final’ within the meaning of § 1291 is

frequently so close a question that decision of that issue either way can be

supported with equally forceful arguments, and [] it is impossible to devise a

formula to resolve all marginal cases coming within what might well be called the

‘twilight zone’ of finality. Because of this difficulty this Court has held that the

requirement of finality is to be given a ‘practical rather than a technical

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construction.’” Gillespie v. United States Steel Corp., 379 U.S. 148, 152 (1964)

(quoting Cohen, 337 U.S. at 546). Although the practical finality rule “borrows

some concepts from the collateral order doctrine,” it is broader in application.

Graham v. Hartford Life & Accident Ins. Co., 501 F.3d 1153, 1158 n.3 (10th Cir.

2007); see also Miami Tribe of Okla. v. United States, 656 F.3d 1129, 1139 n.13

(10th Cir. 2011) (same). But as we have warned, this exception to the

administrative-remand rule “must be narrowly construed and ‘pragmatic finality’

invoked only in truly ‘unique instances’ if we are to preserve the vitality of §

1291.” Boughton v. Cotter Corp., 10 F.3d 746, 752 (10th Cir. 1993).

We stated in Bender that “the need for the practical application of § 1291

[is strongest] in situations where it is clearly urgent that an important issue–one

that is serious and unsettled, and not within the trial court’s discretion–be

decided.” 744 F.2d at 1427 (internal citation omitted). Thus, we employ a two-

pronged test for applying the practical finality rule: the issue must be “important”

and it must be “urgent.” See, e.g., Trout Unlimited, 441 F.3d at 1218 (“In the

context of a district court order remanding a matter to an administrative agency,

jurisdiction may be appropriate when the issue presented is both urgent and

important.”). If the test is met, we then follow “a balancing approach . . . to make

this jurisdictional decision [under § 1291].” Bender, 744 F.2d. at 1427. “The

critical inquiry” in determining whether a district court order can be considered

final under this balancing test “is whether the danger of injustice by delaying

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appellate review outweighs the inconvenience and costs of piecemeal review.” Id.

Notably, “[w]hen we have heard interlocutory appeals under the practical

finality rule, central to our analysis was a concern the agency likely would be

foreclosed from future appellate review.” Miami Tribe, 656 F.3d at 1140

(emphasis added). Indeed, we have reiterated many times that “we review orders

to remand a matter to an administrative agency when it is necessary to ensure that

we can review important legal questions which a remand may make effectively

unreviewable, because administrative agencies may be barred from seeking

district court (and thus circuit court) review of their own administrative

decisions.” Graham, 501 F.3d at 1158 (internal quotation marks omitted); see

also Bender, 744 F.2d at 1428 (same).

The logical corollary of this principle is that we rarely take “jurisdiction

over appeals involving private litigants seeking immediate appeal of remand

orders because the issues presented would be reviewable upon conclusion of the

remand proceedings.” Miami Tribe, 656 F.3d at 1140 n.14 (emphasis added); see

also Trout Unlimited, 441 F.3d at 1219 (“In Bender, this court applied the

exception to the administrative-remand rule when we determined the case

involved a ‘serious and unsettled’ question regarding federal oil and gas leasing

and was urgent because refusal to assert jurisdiction might have foreclosed future

appellate review of the issue at later stages in the proceeding.”) (emphasis in

original); accord Boughton, 10 F.3d at 752 (“In Bender, this court relied heavily

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on our belief that a refusal to take jurisdiction would have foreclosed future

appellate scrutiny of the unsettled issue.”); Lakes Pilots Ass’n, Inc. v. U.S. Coast

Guard, 359 F.3d 624, 625 (D.C. Cir. 2004) (explaining the “asymmetry” of

allowing appeals of remand orders when brought by the agency but not appeals by

private litigants “may seem strange, but it flows from an evenhanded application

of the requirement that the error asserted not be remediable on appeal from a final

judgment”); Cf. Cotton Petroleum Corp. v. U.S. Dep’t of Interior, Bureau of

Indian Affairs, 870 F.2d 1515, 1522 (10th Cir. 1989) (allowing jurisdiction over

private party’s appeal of remand order in “unique instance . . . [where] the danger

of injustice of delaying appellate review outweighs the inconvenience and costs of

piecemeal review”) (quoting Bender, 744 F.2d at 1427)).

Viewed in this light, the district court’s order appealed here does not meet

the urgency prong of the practical finality exception to the administrative-remand

rule. There is no risk that the Energy Companies will be foreclosed from making

the arguments that they present in this appeal after the administrative process is

complete. See SUWA, 525 F.3d at 970 (holding issue not urgent when potential

intervenors can re-raise legal claims if BLM rules against them on remand);

accord Trout Unlimited, 441 F.3d at 1219 (concluding issue not urgent where

Defendants–Intervenors could seek administrative and judicial review if

dissatisfied with Forest Service’s decision on remand).

The Energy Companies claim that it is possible the Secretary could be

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prevented from securing appellate review of the district court’s order at issue

here. They present three scenarios in which they assert the Secretary would not

be able to seek review of the district court’s order: (1) Nerd Gas or Baseline

Minerals could settle their IBLA appeal with BLM; (2) the IBLA could resolve

one of the pending administrative appeals on grounds unrelated to § 226(b)(1)(A);

or (3) the IBLA could accept Energy Companies’ argument and hold that the

BLM has no authority to decline lease issuance under § 226(b)(1)(A). Aplt. Resp.

Opposing Intervenors-Aple. Motion to Dismiss at 17. These scenarios are far too

conjectural to serve as a basis for jurisdiction under the practical finality rule. Cf.

Bender, 744 F.2d at 1428 (declining to consider “‘possibilities’ [] too conjectural

to avoid reaching a just result” in practical finality analysis) (internal quotation

marks omitted). Furthermore, this line of argument turns the urgency prong of

this analysis on its head because the Secretary has not appealed the district

court’s order—if he had, our analysis would be decidedly different under our

precedent cited above.

Energy Companies also argue that postponed review will lead to

uncertainty, further litigation, and increased costs during the remand process. But

this is true with respect to most non-final decisions a district court makes and

does “not create appellate jurisdiction where it does not otherwise exist.” Trout

Unlimited, 441 F.3d at 1219 n.2. In this instance, as is often the case, “immediate

appeal [of a non-final district court decision] would avoid the risk that

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proceedings held after a challenged ruling but before appeal would have to be

repeated following appeal and reversal;” however, for good reason “the final

judgment rule strikes a presumptive balance in favor of deferring review.” 15A

Wright & Miller § 3907, at 272. “Although well-established rules of

appealability might at times cause an action to be determined unjustly, slowly,

and expensively, they have nonetheless the great virtue of forestalling the delay,

harassment, expense, and duplication that could result from multiple or ill-timed

appeals.” Boughton, 10 F.3d at 752 (quoting 15A Wright & Miller §3913, at

462); see also Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399,

401 (5th Cir. 1984) (en banc) (“This finality rule is designed to avoid piecemeal

trial and appellate litigation and the delays and costs of multiple appeals upon

both parties and courts, as well as to provide a clear test so that needless

precautionary appeals need not be taken lest substantive rights be lost.”).

We hold, as we have held in other cases in which appellants will have later

opportunities to raise their arguments on appeal, that “delaying review of the

district court’s judgment here will not result in substantial injustice to Movants.”

SUWA, 525 F.3d at 970. Because this appeal is not urgent within the meaning of

the practical finality exception to the administrative remand rule, the rule applies

and we lack jurisdiction over this appeal. 5

5
Because we hold that we lack jurisdiction to review the challenged district
court order at this stage of the proceedings, we do not reach the merits of Energy
Companies argument that 30 U.S.C. § 226(b)(1)(A) compels the Secretary of

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 The appeal is DISMISSED for lack of jurisdiction.

Interior to issue oil and gas leases to high bidders within sixty days of payment.

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