United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 21, 2010 Decided July 16, 2010
No. 09-5157
JICARILLA APACHE NATION,
APPELLANT
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-00803)
Steven D. Gordon argued the cause for appellant. With
him on the briefs was Thomas J. McIntosh. Lynn E. Calkins
entered an appearance.
John E. Arbab, Attorney, U.S. Department of Justice,
argued the cause for appellee United States Department of the
Interior. With him on the brief were John C. Cruden, Acting
Assistant Attorney General, and Elizabeth A. Peterson,
Attorney. Michael T. Gray, Attorney, and R. Craig
Lawrence, Assistant U.S. Attorney, entered appearances.
2
Charles L. Kaiser argued the cause for appellee Vastar
Resources, Inc., et al. With him on the brief was Charles A.
Breer.
Before: GINSBURG, GARLAND and BROWN, Circuit
Judges.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: Jicarilla Apache Nation (Jicarilla)
challenges the denial of its claim for additional royalties for
natural gas leases in force from January 1984 through June
1995. After the United States Department of the Interior
(Interior) rejected the claim, Jicarilla filed this suit in the
district court. The district court denied Jicarilla’s motion for
summary judgment and, on its own motion, granted summary
judgment to Interior. Jicarilla Apache Nation v. U.S. Dep’t of
the Interior, 604 F. Supp. 2d 139 (D.D.C. 2009). Because we
are persuaded Interior failed to consider an important aspect
of the problem when it retrospectively applied regulations
intended to have only prospective effect and failed to engage
in reasoned decisionmaking when it made an
unacknowledged volte-face on the applicability of the Jicarilla
methodology, we reverse in part and remand the case to the
district court for further proceedings consistent with this
opinion.
I
Jicarilla is a federally recognized Indian Tribe with a
reservation in northwest New Mexico (the Reservation).
Jicarilla obtains royalty payments by leasing the rights to
produce natural gas from Reservation lands. Lessees agree to
pay Jicarilla royalties equal to one-sixth or one-eighth the
value of the natural gas produced and sold from the
3
Reservation. Sometimes the price paid for Reservation gas
does not reflect market value because the gas is not sold under
arm’s-length contracts. To ensure full royalties in such
instances, the leases contain a provision describing how to
calculate the “value” of gas for royalty purposes by reference
to a “major portion” price:
“[V]alue” for the purposes hereof may . . . be
calculated on the basis of the highest price paid or
offered . . . at the time of production for the major
portion of the . . . gas . . . produced and sold from the
field where the leased lands are situated . . . .
Oil and Gas Mining Lease—Tribal Indian Lands, ¶ 3(c) (Mar.
7, 1952). The instant dispute over how the major portion
price should be calculated under Interior’s regulatory
authority arises because the leases do not define the term
“major portion.”
The Indian Mineral Leasing Act of 1938 (IMLA), 25
U.S.C. §§ 396a-396g, permits an Indian Tribe, such as
Jicarilla, to lease its lands for “mining purposes,” with the
Secretary of the Interior’s (Secretary) approval and subject to
the rules and regulations promulgated by the Secretary. Id. §§
396a, 396d. During all relevant times, Jicarilla’s leases were
managed jointly by the Minerals Management Service (MMS)
and the Bureau of Indian Affairs (BIA). Both agencies have
regulations for computing the value of gas royalties by
reference to a “major portion” price. Those regulations can
be divided into two categories: first, MMS’ and BIA’s
regulations in effect prior to 1988 (the “pre-1988
Regulations”), and second, MMS’ revised regulations in
effect beginning March 1, 1988 (the “1988 Regulations”).
4
In 1996, MMS and Jicarilla began developing an entirely
new methodology for calculating the major portion for
Jicarilla’s natural gas leases. Since no database contained all
of the necessary information about arm’s-length gas sales for
the Reservation, MMS decided to rely on data from Jicarilla’s
own gas sales through its Royalty-in-Kind (RIK) program.
Under the RIK program, Jicarilla received its royalty share
from the gas leases “in kind” and then sold the gas in arm’s-
length transactions. MMS extrapolated the price Jicarilla
earned selling its one-sixth or one-eighth RIK shares to
establish the major portion price for the remaining five-sixths
or seven-eighths shares of gas sold by lessees. This became
known as the “Jicarilla methodology.” In 1998 and 1999,
MMS used the Jicarilla methodology to compute the major
portion prices for gas sold under Jicarilla’s leases during the
period from January 1984 through June 1995 and then issued
thirty-nine Orders to Perform, directing lessees to pay
additional royalties for this period.
Several companies appealed the Orders to Perform. In
2000, Interior issued three similar decisions affirming Orders
to Perform. Robert L. Bayless, MMS-98-0132-IND (Dec. 22,
2000), Dugan Prod. Corp., MMS-98-0130-IND (Dec. 22,
2000), Merrion Oil & Gas Corp., MMS-98-0228-IND (Dec.
22, 2000) (collectively “Bayless”). In Bayless, Interior denied
the lessees’ appeals, concluding the Jicarilla methodology was
consistent with the 1988 Regulations and the major portion
price was properly calculated. See, e.g., Bayless, MMS-98-
0132-IND, at 2–9.
Then, in 2007, Interior overruled an Order to Perform in
which MMS had directed Intervenors Vastar Resources, Inc.,
Union Texas Petroleum, and Unicon Producing Co.
(collectively “Vastar”) to pay additional royalties to Jicarilla.
Vastar Res., Inc., MMS-98-0131-IND (Mar. 28, 2007)
5
(“Vastar”). In Vastar, Interior determined the Jicarilla
methodology was inconsistent with the 1988 Regulations and
could not be used to determine the major portion price for gas
sold from January 1984 through June 1995. Id. at 6–11.
Interior granted Vastar’s appeal but noted MMS could
recalculate the major portion price if it could do so consistent
with the regulations. Id. at 12. The decision neither cited nor
mentioned the contrary result reached in Bayless.
Jicarilla promptly filed suit in the district court,
challenging Vastar as arbitrary and capricious under the
Administrative Procedure Act (APA) and as a violation of
Interior’s trust responsibility. In its motion for summary
judgment Jicarilla raised three arguments: (1) the Vastar
decision departed from Bayless without explanation; (2) the
decision erroneously concluded the 1988 Regulations were
consistent with the major portion provision of Jicarilla’s
leases and the Jicarilla methodology was inconsistent with
both; and (3) the decision violated Interior’s fiduciary duty to
protect Jicarilla’s interest in the gas leases. As an alternative
to its second argument, Jicarilla noted Vastar’s reasoning
could not apply to the period from January 1984 through
February 1988 because the 1988 Regulations were not in
effect until March 1, 1988. The district court rejected the
three primary arguments but failed to address Jicarilla’s more
limited alternative argument. After the district court’s sua
sponte grant of summary judgment to Interior, Jicarilla filed a
timely notice of appeal.
II
Before reaching the merits, we consider Interior’s
argument that Jicarilla waived its current claim by failing to
raise it before the district court and by failing to exhaust it
before the agency.
6
A
Interior’s waiver argument rests on the faulty premise
that Jicarilla has raised only one claim on appeal. Interior
says that “Jicarilla waived its sole claim in this Court,” which,
“[a]lthough variously phrased,” is “that Vastar is ‘arbitrary
and capricious’ (or inconsistent with the agency’s fiduciary
duty) to the limited extent that Vastar applied the 1988 MMS
regulations to reject the so-called ‘Jicarilla methodology’ as to
the MMS ‘Orders to Perform’ that covered natural gas
produced only between January 1984 and February 1988.”
Interior Br. at 22. To the contrary, Jicarilla has presented
three analytically distinct arguments: (1) Vastar is arbitrary
and capricious because Interior failed to consider an important
part of the problem when it applied the 1988 Regulations to
the period from January 1984 through February 1988; (2)
Vastar is arbitrary and capricious because Interior failed to
engage in reasoned decisionmaking when it departed from the
agency’s precedent, Bayless, without adequate explanation;
and (3) Vastar is a violation of Interior’s fiduciary duty to
Jicarilla.
We conclude Interior has only argued waiver as to the
first of these arguments. Moreover, Interior would be hard-
pressed to argue Jicarilla had waived its second and third
arguments because they were raised in the complaint and the
summary judgment briefing, and addressed in the district
court’s decision. See Complaint ¶¶ 8–10, 22, 24, 33–34,
Jicarilla v. U.S. Dep’t of the Interior, No. 07-cv-00803-RJL
(D.D.C. May 2, 2007); Pl.’s Mem. Supp. Summ. J. (“Mot.
Summ. J.”) at 13–16, 19–24, Jicarilla Apache Nation v. U.S.
Dep’t of the Interior, No. 07-cv-00803-RJL (D.D.C. Jan. 22,
2008); Jicarilla, 604 F. Supp. 2d at 143–44, 145–47. Thus,
the only waiver issue we consider is whether Jicarilla waived
its argument that Vastar is arbitrary and capricious because
7
Interior impermissibly applied the 1988 Regulations to the
January 1984 through February 1988 period.
Ordinarily, we will not accept an argument first raised on
appeal, “for while review of the grant of summary judgment
is de novo, this court reviews only those arguments that were
made in the district court, absent exceptional circumstances.”
Potter v. District of Columbia, 558 F.3d 542, 547 (D.C. Cir.
2009) (citations omitted). However, in this case, Jicarilla did
present the argument to the district court. Contrary to
Interior’s suggestion that Jicarilla presented only the skeleton
of an argument in a single sentence, Jicarilla in fact raised the
argument in three sections of its summary judgment brief—
the “Statement of Facts,” the “Summary of Argument,” and
the “Argument.” See Mot. Summ. J. at 5–6; id. at 12; id. at
19. We therefore hold Jicarilla did not waive the argument by
failing to raise it in the district court.
B
Interior also says Jicarilla forfeited its first argument
because it did not present it to the agency during the Vastar
proceeding. Interior has conveniently overlooked the fact that
it did not present its failure-to-exhaust argument to the district
court—arguably forfeiting its claim of exhaustion. See
Potter, 558 F.3d at 547; see also Cutler v. Hayes, 818 F.2d
879, 891 (D.C. Cir. 1987) (noting “the exhaustion
requirement may be waived by the agency”). And Interior
has not asserted, nor could it, that its argument here is based
on a jurisdictional limit that cannot be waived. See Hettinga
v. United States, 560 F.3d 498, 503 (D.C. Cir. 2009)
(distinguishing non-waivable jurisdictional exhaustion limit
imposed by statute from non-jurisdictional exhaustion limit
imposed by court).
8
In any event, Interior’s exhaustion argument is meritless.
Interior concedes its regulations excluded Jicarilla from
participating in the Vastar proceeding. Interior Br. at 30 &
n.10. Nevertheless, Interior maintains Jicarilla could have
raised its argument before the agency pursuant to a
“cooperative agreement” Jicarilla executed with MMS. See
id. at 30–33. Whatever its terms, the cooperative agreement
does not alter Jicarilla’s lack of status in relation to the Vastar
proceeding and thus does not count against Jicarilla for
exhaustion purposes. Simply put, a party challenging agency
action does not fail to exhaust an argument when the only
opportunity for presenting its position to the agency is an ex
parte contact. See De Jesus Ramirez v. Reich, 156 F.3d 1273,
1277 (D.C. Cir. 1998) (“[The exhaustion of administrative
remedies] requirement pertains only to administrative
remedies actually available to a party. There is no support, in
law or in logic, for the proposition that ‘A’ can be held to
have failed to exhaust remedies available only to ‘B.’”); see
also CSX Transp. v. STB, 584 F.3d 1076, 1078–79 (D.C. Cir.
2009) (judicial review not precluded where party had no
opportunity to raise argument until after agency issued final
rule). Our exhaustion doctrine is tied to the procedural
remedies actually available to interested parties, not to
informal encounters between the agency and the general
public. A contrary rule might unfairly penalize a party that
had complied with the agency’s regulations but neglected to
avail itself of an off-the-record meeting with an agency
official. We consequently reject Interior’s failure-to-exhaust
argument and turn to the merits.
III
On appeal from the district court’s grant of summary
judgment, we review Interior’s decision de novo, applying the
familiar APA standard, which requires us to set aside agency
9
action that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A);
see Am. Wildlands v. Kempthorne, 530 F.3d 991, 997–98
(D.C. Cir. 2008). Our review of agency action under the
arbitrary and capricious standard is “narrow,” and we refuse
to “substitute [our] judgment for that of the agency.” See
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“State Farm”).
Nevertheless, under State Farm, if the agency has committed
a “clear error of judgment” or has “failed to consider an
important aspect of the problem” before it, we will hold the
agency action to be arbitrary and capricious. Id. In addition,
the agency’s explanation for its decision must be “sufficient
to enable us to conclude that [it] was the product of reasoned
decisionmaking,” id. at 52.
Although Vastar encompasses royalties paid under
Jicarilla’s gas leases for the entire period from January 1984
through June 1995, Jicarilla has narrowed its challenge before
this court to the period from January 1984 through February
1988. We correspondingly limit our review to those four
years.
A
First, Jicarilla argues Vastar is arbitrary and capricious
because Interior applied the 1988 Regulations to reject the
Jicarilla methodology for computing gas royalties for the
period from January 1984 through February 1988, even
though the 1988 Regulations were not in effect until March 1,
1988. Jicarilla asserts Interior failed to consider an important
part of the problem when it applied the 1988 Regulations to
the pre-March 1, 1988 period.
10
Interior acknowledges MMS promulgated the 1988
Regulations with the intent that they apply prospectively,
beginning March 1, 1988. Interior Br. at 34 n.11. This is
unsurprising since the regulations so declare. See 53 Fed.
Reg. 1230, 1230 (“These regulations will apply prospectively
to gas production on or after [March 1, 1988].”). However,
Interior has no response to Jicarilla’s argument that Vastar’s
application of the 1988 Regulations to the four-year period
before March 1, 1988 is arbitrary and capricious. In fact,
Interior virtually concedes this point in its brief when it states
it is “proceed[ing] on the premise that Vastar is erroneous
insofar as it applied the 1988 MMS regulations to reject the
‘Jicarilla methodology’ as to the MMS ‘Orders to Perform’
that covered the January 1984-February 1988 time-frame.”
Interior Br. at 34 n.11.
Our review of Vastar confirms Interior’s apparent
concession of error. In Vastar, Interior noted the MMS
Orders to Perform under review concerned Jicarilla’s gas
leases “for the period January 1984 through June 1995.”
Vastar, at 2. Interior then observed that section
206.152(a)(3)(i) of the 1988 Regulations “became effective
on March 1, 1988.” Id. at 3. Even so, Interior proceeded to
evaluate the Jicarilla methodology for the entire period from
January 1984 through June 1995 in light of section
206.152(a)(3)(ii), the “major portion” provision of the 1988
Regulations. See id. at 6–11. In doing so, Interior “failed to
consider an important aspect of the problem,” State Farm,
463 U.S. at 43, namely that section 206.152(a)(3)(ii) was not
in effect for the period from January 1984 through February
1988. We therefore hold Vastar is arbitrary and capricious
with regard to this four-year period.
In a footnote, Jicarilla further suggests the APA
forecloses retroactive application of the 1988 Regulations to
11
royalties on gas produced from January 1984 through
February 1988. Jicarilla Br. at 22 n.16 (citing Chadmoore
Commc’ns, Inc. v. FCC, 113 F.3d 235, 240 (D.C. Cir. 1997)).
Even if Jicarilla properly preserved this argument below,
which is doubtful, we do not find it necessary to reach the
issue. When MMS promulgated the 1988 Regulations, it
explicitly declared the regulations “w[ould] apply
prospectively to gas production on or after [March 1, 1988].”
53 Fed. Reg. 1230, 1230. By definition, the natural gas at
issue in this appeal was produced prior to March 1, 1988.
Thus, the agency’s own statement establishes that Interior
should not have applied the 1988 Regulations to the pre-
March 1, 1988 period, and it is unnecessary for us to decide
whether Interior also contravened retroactivity principles
under the APA.
B
Jicarilla also argues Vastar is arbitrary and capricious
because Interior failed to provide a reasoned explanation for
departing from precedent. Jicarilla explains Bayless upheld
MMS’ Orders to Perform, which applied the Jicarilla
methodology to the period from January 1984 through
February 1988, while Vastar reached a contrary result without
justifying the about-face or even acknowledging Bayless.
Jicarilla contends Interior’s failure to adhere to precedent or
to provide a reasoned explanation for departing from it is
arbitrary and capricious with respect to this four-year
period—an argument to which Interior does not respond.
The district court, addressing the issue on summary
judgment, disagreed with Jicarilla. The district court
observed that “while Interior did not mention [Bayless] by
name in Vastar, neither did Interior sidestep or gloss over
without discussion the key issues underlying [Bayless].
12
Rather, Interior faced them head on and provided a reasoned
explanation for why and how it came to different
conclusions.” Jicarilla, 604 F. Supp. 2d at 143. The district
court further noted, “While a citation to [Bayless] may have
made the agency’s about-face more explicit, the Vastar
decision’s analysis left no uncertainty as to the reasoning
underlying Interior’s new determination.” Id. at 144. The
district court held that “despite Interior’s failure to mention or
distinguish [Bayless] by name, the agency provided the
requisite reasoned explanation for its determination in Vastar
that the Jicarilla methodology upheld in [Bayless] violated
Interior’s regulations.” Id. The court consequently refused to
overturn Vastar on this ground.
One of the core tenets of reasoned decisionmaking
announced in State Farm is that “an agency changing its
course . . . is obligated to supply a reasoned analysis for the
change.” 463 U.S. at 42. We have held that “[r]easoned
decision making . . . necessarily requires the agency to
acknowledge and provide an adequate explanation for its
departure from established precedent,” and an agency that
neglects to do so acts arbitrarily and capriciously. Dillmon v.
NTSB, 588 F.3d 1085, 1089–90 (D.C. Cir. 2009) (citing FCC
v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1811
(2009)).
Of course, this rule of reasoned decisionmaking has
limits. For instance, we do not require an agency to grapple
with every last one of its precedents, no matter how
distinguishable. LeMoyne-Owen College v. NLRB, 357 F.3d
55, 60 (D.C. Cir. 2004) (“An agency is by no means required
to distinguish every precedent cited to it by an aggrieved
party.”). We “permit agency action to stand without elaborate
explanation where distinctions between the case under review
and the asserted precedent are so plain that no inconsistency
13
appears.” Bush-Quayle ’92 Primary Comm., Inc. v. FEC, 104
F.3d 448, 454 (D.C. Cir. 1997). At the same time, we have
never approved an agency’s decision to completely ignore
relevant precedent. See LeMoyne-Owen College, 357 F.3d at
61 (“[W]here . . . a party makes a significant showing that
analogous cases have been decided differently, the agency
must do more than simply ignore that argument.”). Like a
court, “[n]ormally, an agency must adhere to its precedents in
adjudicating cases before it.” Consol. Edison Co. of N.Y., Inc.
v. FERC, 315 F.3d 316, 323 (D.C. Cir. 2003). Thus, “[a]n
agency’s failure to come to grips with conflicting precedent
constitutes ‘an inexcusable departure from the essential
requirement of reasoned decision making.’” Ramaprakash v.
FAA, 346 F.3d 1121, 1125 (D.C. Cir. 2003) (quoting
Columbia Broad. Sys. v. FCC, 454 F.2d 1018, 1027 (D.C. Cir.
1971)).
In this case, the district court lamented Vastar’s failure to
address Bayless but concluded this was a forgivable oversight
because Vastar’s reasoning clearly explained why the agency
was changing course. We do not agree that the agency’s
failure to address Bayless is excusable. Jicarilla says Bayless
directly conflicts with Vastar, and Interior agrees. See
Interior Br. at 2 (“The [Jicarilla] methodology rejected in
Vastar, however, had previously been upheld by [Interior] in
[Bayless].”). Under these circumstances, Interior should have
confronted this conflicting precedent. Instead, Vastar does
not even acknowledge Bayless’ existence, let alone explain
why the agency chose to depart from it. Silence in the face of
inconvenient precedent is not acceptable. Greater Boston
Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970)
(“[I]f an agency glosses over or swerves from prior
precedents without discussion it may cross the line from the
tolerably terse to the intolerably mute.”).
14
Intervenor Vastar argues Bayless is the only departure
from precedent and Vastar is consistent with more than a
dozen other decisions Interior has issued since Bayless.
Vastar Br. at 30 & n.18. This may very well be true. But
because Vastar does not cite these other precedents nor
address Bayless at all, Vastar’s argument is merely “appellate
counsel’s post hoc rationalizations for agency action,” which
we “may not accept.” State Farm, 463 U.S. at 50. If Bayless
is an aberration, it is Interior’s responsibility to so declare, not
ours. We hold Interior’s failure in Vastar to address Bayless,
a decision reaching a contrary result on similar facts, renders
Vastar arbitrary and capricious.
C
Because we hold Vastar is arbitrary and capricious on the
two independent grounds discussed above, we decline to
consider Jicarilla’s third argument—that Vastar’s rejection of
the Jicarilla methodology to compute gas royalties for the
period from January 1984 through February 1988 also
violates Interior’s fiduciary duty to Jicarilla.
IV
Finally, Interior argues that even if we decide Vastar is
arbitrary and capricious for the period from January 1984
through February 1988, we nonetheless should uphold
Interior’s decision because any error is harmless. In this
regard, Interior contends Jicarilla has not satisfied its burden
of demonstrating prejudicial error because it has not explained
how its interests are harmed by the agency’s mistake.
Courts reviewing agency action under section
706(2)(A)’s “arbitrary and capricious” standard must take
“due account . . . of the rule of prejudicial error.” 5 U.S.C. §
15
706. The harmless error rule applies to agency action because
“[i]f the agency’s mistake did not affect the outcome, if it did
not prejudice the petitioner, it would be senseless to vacate
and remand for reconsideration.” PDK Labs., Inc. v. U.S.
DEA, 362 F.3d 786, 799 (D.C. Cir. 2004). The burden to
demonstrate prejudicial error is on the party challenging
agency action. See Air Canada v. DOT, 148 F.3d 1142, 1156
(D.C. Cir. 1998). However, the harmless error rule is “not . . .
a particularly onerous requirement,” Shinseki v. Sanders, 129
S. Ct. 1696, 1706 (2009), and the Supreme Court has
cautioned courts applying the rule against “us[ing] mandatory
presumptions and rigid rules rather than case-specific
application of judgment, based upon examination of the
record.” Id. at 1704–05. If prejudice is obvious to the court,
the party challenging agency action need not demonstrate
anything further. Id. at 1706.
Here, the prejudice to Jicarilla from the errors in Vastar is
obvious. If, on remand, Interior reverses its decision in
Vastar and applies the Jicarilla methodology to compute gas
royalties for the period from January 1984 through February
1988, Jicarilla likely will receive additional revenue from its
lessees. And this outcome is certainly conceivable because it
was the result reached in Bayless. See PDK Labs., 362 F.3d
at 798–99 (declining to hold agency’s erroneous departure
from precedent without explanation was harmless where, on
remand, agency might decide to follow precedent). The
errors in Vastar therefore cannot be said to be harmless.
Interior and Vastar devote substantial portions of their
briefs to the argument that Vastar’s errors are harmless
because the Jicarilla methodology for computing gas royalties
would be invalid under the pre-1988 Regulations and because
Bayless was flawed. These are issues for Interior, not this
court, to consider in the first instance. See SEC v. Chenery
16
Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court, in
dealing with a determination or judgment which an
administrative agency alone is authorized to make, must judge
the propriety of such action solely by the grounds invoked by
the agency.”). As we explained above, in Vastar, Interior
erroneously applied the 1988 Regulations to conclude the
Jicarilla methodology was invalid for the period from January
1984 through February 1988 and failed to explain Vastar’s
departure from Bayless. Interior’s and Vastar’s assertions
here are nothing more than merits arguments disguised as a
discussion of harmless error.
V
We hold Vastar is arbitrary and capricious with respect to
the time period from January 1984 through February 1988.
For the reasons discussed above, Interior’s decision fails to
consider an important aspect of the problem and does not
reflect the reasoned decisionmaking required of an agency.
We therefore reverse in part the district court’s grant of
summary judgment and remand the case to the district court
with instructions to vacate Vastar in part and remand the
decision to Interior for proceedings consistent with this
opinion.
So ordered.