Ctr for Biological Diversity v. Ken Salazar ( 2012 )

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT Fifth Circuit
FILED
May 30, 2012
No. 10-60411, consolidated with Case Numbers 10-60413, Lyle W. Cayce
10-60414, 10-60415, 10-60416 Clerk
GULF RESTORATION NETWORK, INC.; SIERRA CLUB, INC.,
Petitioners
v.
KEN SALAZAR, Secretary of the Department of Interior; WILMA LEWIS,
Assistant Secretary, Land and Minerals Management, Department of the
Interior; MICHAEL R. BROMWICH, Director, Minerals Management Service,
Department of the Interior,
Respondents
No. 10-60417, consolidated with Case Numbers 10-60468, 10-60475,
10-60483, 10-60488, 10-60489, 10-60491, 10-60496, 10-60499, 10-60500
CENTER FOR BIOLOGICAL DIVERSITY,
Petitioner
v.
KEN SALAZAR, Secretary of the Department of Interior; MICHAEL R.
BROMWICH, Director of the Minerals Management Service; MINERALS
MANAGEMENT SERVICE,
Respondents
Consolidated with 10-60490
CENTER FOR BIOLOGICAL DIVERSITY, SIERRA CLUB, INCORPORATED,
Petitioners
v.
KEN SALAZAR, Secretary of the Department of Interior; MICHAEL R.
BROMWICH, Director of the Minerals Management Service; MINERALS
MANAGEMENT SERVICE,
Respondents
Petitions for Review of Orders of the
Department of Interior1
Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
DENNIS, Circuit Judge:
On April 20, 2010, BP’s Deepwater Horizon, an oil drilling rig on the outer
continental shelf, 50 miles from Louisiana, exploded, causing a three-month long
spill of 4.9 million barrels of oil into the Gulf of Mexico. Before and during the
oil spill, the Department of the Interior (DOI)2 continued to process mineral
1
Oral argument was heard together in these cases and, because of the “overlapping
issues presented . . . , we . . . consolidate them for disposition.” FG Hemisphere Assocs, LLC
v. Republique du Congo, 455 F.3d 575, 580 (5th Cir. 2006).
2
The approvals were issued by the Mineral Management Service (MMS), a division of
the DOI. In June 2010, MMS was redesignated the Bureau of Ocean Energy Management,
Regulation and Enforcement (BOEMRE). See Secretarial Order No. 3302, U.S. Dep’t of the
Interior, available at http://www.doi.gov/deepwaterhorizon/loader.cfm?cs
Module=security/getfile&PageID=35872. BOEMRE was subsequently divided, on October 1,
2011, into the Bureau of Safety and Environmental Enforcement, the Bureau of Ocean Energy
Management, and the Office of Natural Resources Revenue. See Reorganization of Title 30:
Bureaus of Safety and Environmental Enforcement and Ocean Energy Management, 76 Fed.
Reg. 64432 (Oct. 18, 2011). For simplicity, we will refer to the entity that approved the plans
as the “DOI.”
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Nos. 10-60411 et al.
lessees’ applications for approval of plans for exploration and development of
new oil wells.
The petitioners, the Sierra Club, the Gulf Restoration Network, and the
Center for Biological Diversity (the Center), non-profit environmental protection
organizations, filed petitions for judicial review in this court challenging sixteen
DOI plan approvals, issued between March 29 and May 20, 2010, under the
Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. §§ 1331-1356a.3
Specifically, the petitioners argue that the DOI’s approvals of the plans violated
both the OCSLA and the National Environmental Policy Act of 1969 (NEPA), 42
U.S.C. §§ 4321 et seq., because: (1) the DOI failed to consider the BP Deepwater
Horizon disaster in approving further deepwater drilling; and (2) the DOI
conducted an inadequate review of the plans under NEPA, because it incorrectly
applied “categorical exclusions” (from the NEPA requirements of preparing
environmental assessments or environmental impact statements) to those plans,
which should not have been so excluded because they involved drilling in
“relatively untested deep water,” “areas of high biological sensitivity,” “areas of
high seismic risk or seismicity,” or “areas of hazardous natural bottom
conditions.” As to the second argument, the Center emphasizes that the BP
Deepwater Horizon disaster further shows the inherent inadequacy of the DOI’s
environmental analyses underlying the categorical exclusions. The petitioners
request that we vacate the DOI’s approvals of the sixteen plans and remand the
plans to the DOI for further proceedings consistent with OCSLA and NEPA.
We conclude that: (1) the petitioners’ OCSLA-based challenges are
justiciable, except for four, which have become moot; (2) the DOI’s approval of
the exploratory and development plans are subject to judicial review by this
court under OCSLA, 43 U.S.C. § 1349(c)(2); (3) the petitioners’ failure to
3
Additionally, several of the companies which submitted the approved plans intervened
and are also participating in this appeal.
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Nos. 10-60411 et al.
participate in the administrative proceedings related to the DOI’s approval of
the plans as required by § 1349(c)(3) does not oust our jurisdiction because that
participation requirement is a non-jurisdictional administrative exhaustion rule;
but, (4) the petitioners have not shown sufficient justification for excusing them
from that exhaustion requirement in this case. Accordingly, except for four of
the petitioners’ petitions for judicial review that are dismissed as moot, the
petitioners’ petitions for judicial review are dismissed because of their failure to
participate in the administrative proceedings.
I. BACKGROUND
Congress declared it to be the policy of the United States that “the subsoil
and seabed of the outer Continental Shelf [(OCS)] appertain to the United States
and are subject to its jurisdiction, control, and power of disposition as provided
in [OCSLA].” 43 U.S.C. § 1332(1). Further, the OCS “is a vital national resource
reserve held by the Federal Government for the public, which should be made
available for expeditious and orderly development, subject to environmental
safeguards, in a manner which is consistent with the maintenance of competition
and other national needs.” Id. § 1332(3). The DOI is authorized and required
to “administer the provisions of [OCSLA] relating to the leasing of the [OCS]” for
mineral exploration and development and to “prescribe such rules and
regulations as may be necessary to carry out such provisions.” Id. § 1334(a).
The DOI “is authorized to grant to the highest responsible qualified bidder or
bidders by competitive bidding, under regulations promulgated in advance, any
oil and gas lease on submerged lands of the [OCS].” Id. § 1337(a)(1).
Under OCSLA, as amended in 1978, the development of an offshore oil
well must be pursued by a lease purchaser or mineral lessee in four distinct
administrative stages. See Sec’y of the Interior v. California, 464 U.S. 312,
336-37 (1984). The four stages are: “(1) formulation of a five year leasing plan by
the Department of the Interior; (2) lease sales; (3) exploration by the lessees; (4)
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development and production. Each stage involves separate regulatory review
that may, but need not, conclude in the transfer to lease purchasers of rights to
conduct additional activities on the OCS. And each stage includes specific
requirements for consultation with Congress, between federal agencies, or with
the States.” Id. at 337.
The present case involves only the third and fourth stages: exploration and
development and production. The first two stages — the five year leasing plan
and lease sales — are not at issue here. The Court in Secretary of the Interior
described the pertinent exploration and development and production stages as
follows:
“(3) Exploration. The third stage of OCS planning involves review of more
extensive exploration plans submitted to Interior by lessees. 43 U.S.C. § 1340(1976 ed., Supp. III). Exploration may not proceed until an exploration plan has
been approved. A lessee’s plan must include a certification that the proposed
activities comply with any applicable state management program developed
under [the Coastal Zone Management Act (CZMA)]. OCSLA expressly provides
for federal disapproval of a plan that is not consistent with an applicable state
management plan unless the Secretary of Commerce finds that the plan is
consistent with CZMA goals or in the interest of national security. 43 U.S.C. §
1340(c)(2) (1976 ed., Supp. III). The plan must also be disapproved if it would
‘probably cause serious harm or damage . . . to the marine, coastal, or human
environment. . . .’ 43 U.S.C. §§ 1334(a)(2)(A)(i), 1340(c)(1) (1976 ed., Supp. III).
If a plan is disapproved for the latter reason, the Secretary may ‘cancel such
lease and the lessee shall be entitled to compensation. . . .’ 43 U.S.C. § 1340(c)(1)
(1976 ed., Supp. III). . . .” 464 U.S. at 339 (alterations in original).
“(4) Development and production. The fourth and final stage is
development and production. 43 U.S.C. § 1351 (1976 ed., Supp. III). The lessee
must submit another plan to Interior. The Secretary must forward the plan to
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the governor of any affected state and, on request, to the local governments of
affected states, for comment and review. 43 U.S.C. §§ 1345(a), 1351(a)(3) (1976
ed., Supp. III). Again, the governor’s recommendations must be accepted, and
the local governments’ may be accepted, if they strike a reasonable balance
between local and national interests. Reasons for accepting or rejecting a
governor’s recommendations must be communicated in writing to the governor.
43 U.S.C. § 1345(c) (1976 ed., Supp. III). In addition, the development and
production plan must be consistent with the applicable state coastal
management program. The State can veto the plan as ‘inconsistent,’ and the
veto can be overridden only by the Secretary of Commerce. 43 U.S.C. § 1351(d)
(1976 ed., Supp. III). A plan may also be disapproved if it would ‘probably cause
serious harm or damage . . . to the marine, coastal or human environments.’ 43
U.S.C. § 1351(h)(1)(D)(i) (1976 ed., Supp. III). If a plan is disapproved for the
latter reason, the lease may again be cancelled and the lessee is entitled to
compensation. 43 U.S.C. § 1351(h)(2)(C) (1976 ed., Supp. III).” 464 U.S. at 340(alterations in original).
“Congress has thus taken pains to separate the various federal decisions
involved in formulating a leasing program, conducting lease sales, authorizing
exploration, and allowing development and production. Since 1978, the
purchase of an OCS lease, standing alone, entails no right to explore, develop,
or produce oil and gas resources on the OCS. The first two stages are not subject
to consistency review; instead, input from State governors and local governments
is solicited by the Secretary of Interior. The last two stages invite further input
from governors or local governments, but also require formal consistency review.
States with approved CZMA plans retain considerable authority to veto
inconsistent exploration or development and production plans put forward in
those latter stages. The stated reason for this four part division was to forestall
premature litigation regarding adverse environmental effects that all agree will
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flow, if at all, only from the latter stages of OCS exploration and production.”
Id. at 340-341 (footnote omitted).
II. JURISDICTION
A. Standing and Mootness
“Article III of the Constitution confines the federal courts to adjudicating
actual ‘cases’ and ‘controversies.’” Allen v. Wright, 468 U.S. 737, 750 (1984). “All
of the doctrines that cluster about Article III — not only standing but mootness,
ripeness, political question, and the like — relate in part, and in different though
overlapping ways, to an idea, which is more than an intuition but less than a
rigorous and explicit theory, about the constitutional and prudential limits to the
powers of an unelected, unrepresentative judiciary in our kind of government.”
Id. (quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178–1179 (D.C. Cir. 1983)
(Bork, J., concurring) (internal quotation marks omitted)). “The Art[icle] III
doctrine that requires a litigant to have ‘standing’ to invoke the power of a
federal court is perhaps the most important of these doctrines.” Id. Accordingly,
before we reach the merits of any claim, we must first assure ourselves that the
petitioners have standing to bring their claims and that the claims are not moot.
1.
The petitioners have standing to proceed in this case. The DOI and the
intervenors do not contend otherwise. The standard for organizational standing
is as follows:
An association has standing to bring a suit on behalf of its members
when: (1) its members would otherwise have standing to sue in their
own right; (2) the interests it seeks to protect are germane to the
organization’s purpose; and (3) neither the claim asserted nor the
relief requested requires the participation of individual members.
Texans United for a Safe Econ. Educ. Fund v. Crown Cent. Petroleum Corp., 207
F.3d 789, 792 (5th Cir. 2000) (citing Hunt v. Wash. State Apple Adver. Comm’n,
432 U.S. 333, 343 (1977); Friends of the Earth, Inc. v. Chevron Chem. Co., 129
7
Nos. 10-60411 et al.
F.3d 826, 827-28 (5th Cir. 1997)). The individual members of an organization
have standing to sue in their own right if “(1) they have suffered an actual or
threatened injury; (2) the injury is ‘fairly traceable’ to the defendant’s action; and
(3) the injury will likely be redressed if the plaintiffs prevail in the lawsuit.” Id.at 792 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Friends
of the Earth, Inc. v. Crown Cent. Petroleum, 95 F.3d 358, 360 (5th Cir.1996)).
Each of the petitioners satisfies the requirements for organizational
standing. First, their individual members have standing to sue in their own
right. The organizations have submitted declarations and affidavits from their
members, describing their research, economic, recreational, and esthetic
interests in the Gulf of Mexico and the surrounding area, including its wildlife,
ecosystems, coastal lines, and beaches. For instance, one member is a
photographer who specializes in conservation photography, and whose subject
matter would be impaired by damage to the area. Another member owns a
kayaking tour company and relies on the waters of the Gulf of Mexico being safe
in order to continue attracting customers. Threats to these interests, which the
petitioners argue are posed by the DOI’s approval of plans for exploration, as
well as development and production without properly accounting for their
environmental impact, as required by OCSLA and NEPA, are cognizable as
injuries for the purposes of standing. See Medina Cnty. Envtl. Action Ass’n v.
Surface Transp. Bd., 602 F.3d 687, 691 n.4 (5th Cir. 2010) (“[The petitioner’s]
contentions as to esthetic and pecuniary harm are in fact sufficient to support
standing.” (citing Defenders of Wildlife, 504 U.S. at 563; Tex. Democratic Party
v. Benkiser, 459 F.3d 582, 586-87 (5th Cir. 2006))).
These injuries are also “fairly traceable” to the DOI’s approvals of various
plans regarding deepwater drilling in the Gulf of Mexico, especially because
energy companies are required to seek agency approval at each of the four stages
of developing an offshore oil well. Cf. Sierra Club v. Glickman, 156 F.3d 606,
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614 (5th Cir. 1998) (explaining that although the United States Department of
Agriculture lacked “coercive control” over third party farmers, its ability to offer
incentives to those farmers, and the effect of those incentives, were sufficient to
show that the petitioners’ injuries were “fairly traceable” to the agency). In a
similar context, the District of Columbia Circuit has recognized causation and
redressability in a case also brought under OCSLA. See Ctr. for Biological
Diversity v. Dep’t of the Interior, 563 F.3d 466, 479 (D.C. Cir. 2009) (“Petitioners
have shown, solely for the sake of an Article III standing analysis, that [DOI’s]
adoption of an irrationally based Leasing Program [under OCSLA] could cause
a substantial increase in the risk to their enjoyment of the animals affected by
the offshore drilling, and that our setting aside and remanding of the Leasing
Program would redress their harm.”).
Additionally, the individual members satisfy the requirement of
redressability. In a case such as this, where the petitioners are suing to require
the DOI to comply with the procedures of OCSLA and NEPA, they “need not
show that the procedural remedy that [they are] requesting will in fact redress
[their] injur[ies],” although they “must nonetheless show that there is a
possibility that the procedural remedy will redress [their] injur[ies].’” Sierra
Club, 156 F.3d at 613. “In order to make this showing, the [petitioners] must
show that ‘the procedures in question are designed to protect some threatened
concrete interest of [theirs] that is the ultimate basis of [their] standing.’” Id.(quoting Defenders of Wildlife, 504 U.S. at 573 n.8). Here, the interests asserted
by the petitioners are among those that both NEPA and OCSLA were designed
to protect. See 43 U.S.C. § 1332(3) (“It is hereby declared to be the policy of the
United States that . . . the outer Continental Shelf is a vital national resource
reserve held by the Federal Government for the public, which should be made
available for expeditious and orderly development, subject to environmental
safeguards, in a manner which is consistent with the maintenance of competition
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and other national needs.” (emphasis added)); Lujan v. Nat’l Wildlife Fed’n, 497
U.S. 871, 886 (1990) (“We have no doubt that ‘recreational use and aesthetic
enjoyment’ are among the sorts of interests those statutes [NEPA and another
federal statute] were specifically designed to protect.” (emphasis removed)).
In addition to the individual members having standing to bring suit in
their own right, the litigation is germane to the purposes of each organization.
The Sierra Club is a nonprofit organization that uses litigation and advocacy to
promote environmental causes, and has about 57,000 members in states
bordering the Gulf of Mexico; the Gulf Restoration Network is a not-for-profit
environmental advocacy organization that advocates for protecting and restoring
the Gulf of Mexico’s natural resources; and the Center is a nonprofit
organization that advocates for environmental causes, especially those linked to
preserving a diversity of animal and plant species.
Finally, the participation of individual members is not needed to proceed
in this litigation; the claims asserted and the relief sought by the petitioners are
not particular to any individual. Because neither the claims nor the relief
“require[] individualized proof,” they “are thus properly resolved in a group
context.” Hunt, 432 U.S. at 344.
In sum, we conclude that the petitioners have standing to bring their
requests for judicial review.
2.
However, four of the sixteen petitions challenging plan approvals are moot.
Here, the parties agree that the petitions challenging the following four plans
are moot: Plan R-5019 was superseded by another plan, R-5037; Plan N-9503
was cancelled; Plan S-7409 was superseded by another plan, Plan R-5081; and
Plan N-9509 was superseded by another plan, Plan R-5089. Thus, we dismiss
the petitions for judicial review as to those plans.
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We also conclude that a fifth petition, challenging Plan N-9438, is not
moot. The DOI submits that this petition is moot because the plan has been
cancelled. But as the Center points out, the DOI concedes that there is no
written or signed order cancelling this plan. Absent a showing that the plan has
actually been cancelled, we conclude that the petition challenging the approval
is not moot.
B. Appellate Jurisdiction
Next, we determine whether we have statutory appellate jurisdiction to
judicially review the DOI actions challenged by the petitioners. Subsections
1349(c)(2) and (3) of OCSLA provide:
(c) Review of Secretary’s approval of leasing program; review
of approval, modification or disapproval of exploration or
production plan; persons who may seek review; scope of
review; certiorari to Supreme Court
....
(2) Any action of the Secretary to approve, require
modification of, or disapprove any exploration plan or
any development and production plan under this
subchapter shall be subject to judicial review only in
a United States court of appeals for a circuit in which
an affected State is located.
(3) The judicial review specified in paragraphs (1) and (2)
of this subsection shall be available only to a person
who (A) participated in the administrative
proceedings related to the actions specified in such
paragraphs, (B) is adversely affected or aggrieved by
such action, (C) files a petition for review of the
Secretary’s action within sixty days after the date of
such action, and (D) promptly transmits copies of the
petition to the Secretary and to the Attorney General.
43 U.S.C. § 1349(c)(2), (3).
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1. Section 1349(c)(2)
The petitioners seek judicial review of the DOI’s approval of nine
exploratory plans (EPs) under OCSLA in this court of appeals for the circuit in
which the allegedly affected state of Louisiana is included. OCSLA provides that
“[a]ny action of the [DOI] to approve. . . any exploration plan . . . shall be subject
to judicial review only in a United States court of appeals for a circuit in which
an affected State is located.” 43 U.S.C. § 1349(c)(2). Thus, insofar as the DOI’s
actions in approving the nine EPs are concerned, § 1349(c)(2) clearly subjects
them to our appellate jurisdiction and judicial review, contingent upon other
applicable OCSLA conditions.
The petitioners also seek judicial review of the DOI’s approval of three
“Development Operations Coordination Documents” (DOCDs). It is not obvious
without further study that a DOCD approval is subject to our judicial review
under § 1349(c)(2) as is the DOI’s approval of any “development and production
plan” (DPP) under OCSLA. However, after considering the pertinent OCSLA
provisions, their purpose and legislative history, as well as the DOI’s regulations
adopted pursuant to OCSLA, we conclude that a DOCD is a modified form of a
DPP, the DOI’s approval, modification, or disapproval of which is subject to
judicial review only in the courts of appeals.
Because most OCS oil and gas development has occurred in the Gulf of
Mexico offshore Louisiana and Texas, “[t]he long-standing nature and sheer
volume of development led Congress and the regulatory agencies to impose
different, generally less stringent requirements on some aspects of operations”
in the Western Gulf of Mexico.4 For example, § 1351 of OCSLA exempts leases
4
Robert B. Wiygul, The Structure of Environmental Regulation on the Outer Continental
Shelf: Sources, Problems, and the Opportunity for Change, 12 J. Energy Nat. Resources &
Envtl. L. 75, 85 (1992). The Gulf of Mexico is divided into the Eastern Gulf of Mexico and the
Western Gulf of Mexico. 30 C.F.R. § 250.105 (2011). The Eastern Gulf of Mexico consists of
“all OCS areas of the Gulf of Mexico . . . [that] are adjacent to the State of Florida.” Id. The
Western Gulf of Mexico consists of “all OCS areas of the Gulf of Mexico except those . . . [which]
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in the Gulf of Mexico from some of the detailed requirements imposed by § 1351
in the remainder of the OCS, except those areas offshore of Florida.5 Careful
examination of all OCSLA provisions and their legislative history clearly
indicates that Congress did not intend, however, to exempt development and
production by lessees in the Western Gulf of Mexico from regulation by other
provisions of OCSLA and by valid regulations adopted by the DOI. To the
contrary, these sources evince a legislative intent to authorize the DOI, by valid
regulations, to impose anywhere in the OCS all reasonable development and
production conditions it deems necessary to its stewardship of the OCS and
administration of OCSLA. See 43 U.S.C. §§ 1334, 1351; H.R. Rep. 95-1474, at
115 (1978) (Conf. Rep.); see also Gulf of Mexico Exemption from Sec. 25 of the
Outer Continental Shelf Lands Act, as Amended, 87 Interior Dec. 544 (1980); Oil
& Gas & Sulphur Operations in the Outer Continental Shelf, 48 Fed. Reg. 55,565(Dec. 14, 1983).
Pursuant to this authority, the DOI requires that, before conducting any
development and production activities on a lease or unit in the Western Gulf of
Mexico, the lessee must submit and obtain the DOI’s approval of a Development
Operations Coordination Document (DOCD). 30 CFR § 250.201(a) (2011).
Elsewhere in the OCS, the DOI requires submission and approval of a
Development and Production Plan (DPP) before such activities may commence.
Id.; see also id. § 250.241 (2011) (a submitted “DPP or DOCD must include”: a
“[d]escription, objectives, and schedule,” information about “[t]he location and
water depth of each of [the lessee’s] proposed wells and production facilities”; a
“description of the drilling unit and associated equipment”; a description of the
“[p]roduction facilities”; and a “[s]ervice fee”). Moreover, both DOCDs and DPPs
are adjacent to the state of Florida.” Id. (emphasis added).
5
See 43 U.S.C. § 1351(l).
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must meet the same basic criteria: for either type of plan, the lessee must
demonstrate that it “ha[s] planned and [is] prepared to conduct the proposed
activities in a manner that: (a) Conforms to OCSLA, applicable implementing
regulations, lease provisions and stipulations, and other Federal laws; (b) Is safe;
(c) Conforms to sound conservation practices and protects the rights of the
lessor; (d) Does not unreasonably interfere with other uses of the OCS, including
those involved with national security or defense; and (e) Does not cause undue
or serious harm or damage to the human, marine, or coastal environment.” Id.§ 250.202 (2011). Similarly, the DOI will disapprove a DPP or DOCD if it
determines that
because of exceptional geological conditions, exceptional resource
values in the marine or coastal environment, or other exceptional
circumstances that all of the following apply:
(1) Implementing your DPP or DOCD would cause
serious harm or damage to life (including fish and
other aquatic life), property, any mineral deposits (in
areas leased or not leased), the national security or
defense, or the marine, coastal, or human
environment;
(2) The threat of harm or damage will not disappear or
decrease to an acceptable extent within a reasonable
period of time; and
(3) The advantages of disapproving your DPP or DOCD
outweigh the advantages of development and
production.
Id. § 250.271(d) (2011).
Moreover, the language used in agency documents also suggests that the
DOI views DOCDs essentially as a lesser included form of DPPs. See 53 Fed.
Reg. 10596, 10,608-09 (explaining the decision to retain the DOCD requirement
under a section entitled “Subpart B—Exploration and Development and
Production Plans); Id. at 10,704 (explaining, in promulgating the regulation,
that “[a]ny reference in this part to a Development and Production Plan shall be
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considered to include the Development Operations Coordination Document used
in the western Gulf of Mexico.”).
The adoption of the foregoing regulations by the DOI is consistent with the
legislative history indicating that Congress, by § 1349(c,) sought to provide a
streamlined judicial review of the agency’s approval, modification or disapproval
of all plans for exploration as well as development and production, based on the
agency’s administrative record. See H.R. Rep. 95-590 at 162 (explaining that §
1349(c) provides for judicial review of a more limited nature by having petitions
for review of certain DOI actions proceed directly to the courts of appeals).
Pursuant to that purpose and intent, OCSLA provides that the DOI’s actions
approving, modifying or disapproving exploration or development and production
plans shall be subject to judicial review only by the courts of appeals, 43 U.S.C.
§ 1349(c)(2); that any such action by the DOI “shall only be subject to review
pursuant to the provisions of this subsection, and shall be specifically excluded
from citizen suits which are permitted pursuant to [§ 1349(a)],” id. § 1349(c)(4);
that the DOI “shall file in the appropriate court the record of any public hearings
required by this subchapter and any additional information upon which the
[agency] based [its] decision, as required by [28 U.S.C. § 2112],” and that
“[s]pecific objections to the action of the [DOI] shall be considered by the court
only if the issues upon which such objections are based have been submitted to
the [DOI] during the administrative proceedings related to the actions involved,”
43 U.S.C. § 1349(c)(5); and that “[t]he court of appeals conducting a proceeding
pursuant to this subsection shall consider the matter under review solely on the
record made before the [DOI],” and “[t]he findings of the [DOI], if supported by
substantial evidence on the record considered as a whole, shall be conclusive,”
id. § 1349(c)(6).
For these reasons, we conclude that the DOI’s approval, modification, or
disapproval of a DOCD is subject to judicial review by the appropriate court of
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appeals in accordance with 43 U.S.C. § 1349(c)(2)-(7). It would conflict with the
statutory and administrative purpose and intent to anomalously conclude that
the DOI’s approvals, modifications, and disapprovals of DOCDs are not subject
to judicial review only in the courts of appeals, in the same manner as are the
DOI’s actions with respect to EPs and DPPs. Accordingly, we conclude that we
have jurisdiction of the petitioners’ requests for judicial review of the DOI’s
approvals of the three DOCDs, as well as its approvals of the nine EPs.
2. Section 1349(c)(3)(A)
The DOI and the intervenors contend, however, that our jurisdiction to
review the DOI’s approval of any of the nine EPs and three DOCDs is ousted by
§ 1349(c)(3)(A), which provides that judicial review shall be available only to a
person who participated in the administrative proceedings related to the actions
specified in § 1349(c)(2), because none of the petitioners participated in any of
the proceedings related to the approval of those plans. The petitioners respond
that § 1349(c)(3)(A) is not a jurisdictional limitation, but rather is a
jurisprudential provision requiring that they exhaust their administrative
remedies before seeking judicial review, a requirement from which we should
excuse them under the circumstances of this case. We agree with the petitioners
that § 1349(c)(3)(A) is a non-jurisdictional, claim-processing or exhaustion
requirement; however, because we conclude that the petitioners cannot be
excused or excepted from the consequences of their failure to satisfy that
provision in this case, their petitions will be dismissed.
a. Section 1349(c)(3)(A) is not jurisdictional
“‘Jurisdiction’ refers to ‘a court’s adjudicatory authority.’” Reed Elsevier,
Inc. v. Muchnick, 130 S. Ct. 1237, 1243 (2010) (quoting Kontrick v. Ryan, 540
U.S. 443, 455 (2004)). “Accordingly, the term ‘jurisdictional’ properly applies
only to ‘prescriptions delineating the classes of cases (subject-matter jurisdiction)
and the persons (personal jurisdiction)’ implicating that authority.” [Kontrick,
16
Nos. 10-60411 et al.
540 U.S. at 455]; see also Steel Co. v. Citizens for Better Environment, 523 U.S.
83, 89 (1998) (‘subject-matter jurisdiction’ refers to ‘the courts’ statutory or’
constitutional power to adjudicate the case’ (emphasis in original)); Landgraf v.
USI Film Products, 511 U.S. 244, 274 (1994) (‘[J]urisdictional statutes “speak
to the power of the court rather than to the rights or obligations of the parties”’
(quoting Republic Nat. Bank of Miami v. United States, 506 U.S. 80, 100 (1992)
([Thomas], J., concurring))).” Reed Elsevier, 130 S. Ct. at 1243.
“In light of the important distinctions between jurisdictional prescriptions
and claim-processing rules,” id. at 1244, the Supreme Court has “encouraged
federal courts and litigants to ‘facilitat[e]’ clarity by using the term
‘jurisdictional’ only when it is apposite,” id. (quoting Kontrick, 540 U.S. at 455)
(citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)). In Arbaugh, the
Supreme Court explained its approach to distinguishing jurisdictional
prescriptions from other requirements, such as claims-processing rules:
If the Legislature clearly states that a threshold limitation on a
statute’s scope shall count as jurisdictional, then courts and
litigants will be duly instructed and will not be left to wrestle with
the issue. But when Congress does not rank a statutory limitation
on coverage as jurisdictional, courts should treat the restriction as
nonjurisdictional in character.
Arbaugh, 546 U.S. at 515-16 (citation and footnote omitted).
“The plaintiff in Arbaugh brought a claim under Title VII of the Civil
Rights Act of 1964, which makes it unlawful ‘for an employer . . . to
discriminate,’ inter alia, on the basis of sex. Reed Elsevier. 130 S. Ct. at 1244(quoting 42 U.S.C. § 2000e-2(a)(1)). “But employees can bring Title VII claims
only against employers that have ‘fifteen or more employees.’” Id. (quoting 42
U.S.C. § 2000e(b)). The question in Arbaugh was “whether that employee
numerosity requirement ‘affects federal-court subject-matter jurisdiction or,
instead, delineates a substantive ingredient of a Title VII claim for relief.’” Id.
17
Nos. 10-60411 et al.
(quoting Arbaugh, 546 U.S. at 503). The Supreme Court concluded that “it does
the latter.” Id.The Arbaugh Court’s “holding turned principally on [its] examination of
the text of § 2000e(b), the section in which Title VII’s numerosity requirement
appears. Section 2000e(b) does not ‘clearly stat[e]’ that the employee numerosity
threshold on Title VII’s scope ‘count[s] as jurisdictional.’” Id. (second and third
alterations in original) (quoting Arbaugh, 546 U.S. at 515-16 & n.11). “And
nothing in [the Court’s] prior Title VII cases compelled the conclusion that even
though the numerosity requirement lacks a clear jurisdictional label, it
nonetheless imposed a jurisdictional limit.” Id. (citing Arbaugh, 546 U.S. at 511-
13). “Similarly, § 2000e(b)’s text and structure did not demonstrate that
Congress ‘rank[ed]’ that requirement as jurisdictional.” Id. (alteration in
original) (citing Arbaugh, 546 U.S. at 513-16). The Court noted that “the
employee numerosity requirement is located in a provision ‘separate’ from §
2000e-5(f)(3), Title VII’s jurisdiction-granting section, distinguishing it from the
‘amount-in-controversy threshold ingredient of subject-matter jurisdiction . . .
in diversity-of-jurisdiction under 28 U.S.C. § 1332. Id. (alteration in original)
(quoting Arbaugh, 546 U.S. at 514-15). The Court concluded that “the
numerosity requirement could not fairly be read to ‘speak in jurisdictional terms
or in any way refer to the jurisdiction of the district courts.’” Id. (quoting
Arbaugh, 546 U.S. at 515, in turn quoting Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 394 (1982)) (some internal quotation marks omitted). Therefore,
the Court “‘refrain[ed] from’ construing the numerosity requirement to
‘constric[t] § 1331 or Title VII’s jurisdictional provision.’” Id. (alterations in
original) (quoting Arbaugh, 546 U.S. at 515) (internal quotation marks omitted).
Following the Supreme Court’s instruction, we “now apply this same
approach,” id., to § 1349(c)(3)(A), which states:
18
Nos. 10-60411 et al.
The judicial review specified in paragraphs (1) and (2) of this
subsection shall be available only to a person who (A) participated
in the administrative proceedings related to the actions specified in
such paragraphs . . . .
Considering first whether § 1349(c)(3)(A) “clearly states” that its
participation requirement is “jurisdictional,” see Arbaugh, 546 U.S. at 515, we
conclude that it clearly does not. Additionally, § 1349(c)(3)(A)’s participation
requirement, “like Title VII’s numerosity requirement, is located in a provision
‘separate’ from those granting federal courts subject-matter jurisdiction over .
. . claims.” Reed Elsevier, 130 S. Ct. at 1245-46 (quoting Arbaugh, 546 U.S. at
514-15). Federal courts of appeals have subject-matter jurisdiction to review the
DOI’s approval, modification, or disapproval of plans submitted at the
exploration or development and production stage. 43 U.S.C. § 1349(c)(2). But
§ 1349(c)(2) does not “condition its jurisdictional grant,” see id. at 1246, on
whether a person seeking such judicial review has participated in the
administrative proceedings related to the challenged DOI action. See Reed
Elsevier, 130 S. Ct. at 1246 (citing Arbaugh, 546 U.S. at 515, for the proposition
that ““Title VII’s jurisdictional provision’” does not “‘specif[y] any threshold
ingredient akin to 28 U.S.C. § 1332’s monetary floor.’”).
And, as in Reed Elsevier, “[n]or does any other factor suggest that
[§ 1349(c)(3)(A)’s participation requirement] can be read to ‘speak in
jurisdictional terms or refer in any way to the jurisdiction of the’ federal courts.’”
See id. (quoting Arbaugh, 546 U.S. at 515, in turn quoting Zipes, 455 U.S. at 394)
(internal quotation marks omitted). “A statutory condition that requires a party
to take some action before filing a lawsuit is not automatically “‘a jurisdictional
prerequisite to suit.’” Id. (quoting Zipes, 455 U.S. at 393). “Rather, the
jurisdictional analysis must focus on the ‘legal character’ of the requirement,
which must be discerned by looking to the condition’s text, context, and relevant
historical treatment.” id. (citations omitted) (quoting Zipes, 455 U.S. at 395). The
19
Nos. 10-60411 et al.
Court “similarly ha[s] treated as nonjurisdictional other types of threshold
requirements that claimants must complete, or exhaust, before filing a lawsuit.”
Id. at 1246-47.6
“Plainly read, Arbaugh and [the Court’s other precedents] point to the
conclusion that [§1349(c)(3)(A)] is nonjurisdictional.” See id. at 1251 (Ginsburg,
J., concurring in part and concurring in the judgment). Similar to other
provisions that the Supreme Court has concluded are nonjurisdictional,
§ 1349(c)(3)(A) “does not speak in jurisdictional terms or refer in any way to the
jurisdiction of the federal courts.” See id. As in Reed Elsevier, we determine
that “Arbaugh’s ‘readily administrable bright line’ is therefore controlling,” id.,
and that §1349(c)(3)(A) is nonjurisdictional.7
6
See also id. at 1247 n. 6 (citing Jones v. Bock, 549 U.S. 199, 211 (2007), as “treating
the administrative exhaustion requirement of the Prison Litigation Reform Act of 1995 (PLRA)
— which states that no action shall be brought with respect to prison conditions under § 1983
of this title, or any other Federal law, by a prisoner . . . until such administrative remedies as
are available are exhausted,’ 42 U.S.C. § 1997e(a) — as an affirmative defense[, rather than
a jurisdictional requirement,] even though ‘[t]here is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be brought in court’)” (first and third
alterations in original), and Woodford v. Ngo, 548 U.S. 81, 93 (2006), for the same).
Furthermore, insofar as the §1349(c)(3)(A) participation requirement establishes an
affirmative defense, it is clear that in this case the DOI and the intervenors did not waive or
forfeit that defense, but raised it timely and fully at the first opportunity in this court. See
Kontrick, 540 U.S. at 459-60 (holding that debtor forfeited right to rely on affirmative defense
where he did not raise it before the bankruptcy court reached the merits of the creditor’s
objection).
7
We note that under this court’s precedents, we would reach the same conclusion that
§ 1349(c)(3)(A) is not jurisdictional. As we have explained, “one important factor in deciding
whether [a statutory requirement is jurisdictional] is whether the statute explicitly mentions
and deprives federal courts of jurisdiction if administrative remedies are not exhausted.”
Dawson Farms, LLC v. Farm Serv. Agency, 504 F.3d 592, 605 (5th Cir. 2007). If the statute
explicitly mentions and deprives federal courts of jurisdiction unless the statutory requirement
is met, the statute is jurisdictional. Id. In contrast, where the statute “focuses on the
individual litigant and does not expressly deprive the courts of jurisdiction if the individual
litigant fails to exhaust administrative remedies,” it is jurisprudential rather than
jurisdictional. Id. at 605-06. Here, the provision states that “judicial review . . . shall be
available only to a person who participated in the administrative proceedings . . . .” 43 U.S.C.
§ 1349(c)(3)(A). This language clearly focuses on individual litigants and what they must do
to obtain judicial review, rather than courts and their jurisdiction. See Dawson Farms, 504
20
Nos. 10-60411 et al.
b. Excuse for failure to participate
The petitioners argue that because §1349(c)(3)(A) is nonjurisdictional, this
court can and should, under the circumstances here, find an exception or excuse
for their failure to participate in the administrative proceedings, vacate the
DOI’s approval of the plans involved, and remand the plans to the DOI for
further proceedings. In support of this argument, the petitioners contend that
the DOI, which used its agency website and Office of Public Information to make
the public versions of EPs and DOCDs available to the public, placed the
information in an obscure location on its website, making it difficult to find.
Moreover, they submit, for some of the plans, the DOI placed the public versions
on the website in an untimely manner. Worse, they contend, for some plans, the
DOI did not make the public versions available at all, either on its website or
elsewhere.
“Under ordinary principles of administrative law a reviewing court will not
consider arguments that a party failed to raise in timely fashion before an
administrative agency.” Sims v. Apfel, 530 U.S. 103, 114-15 (2000) (Breyer, J.,
dissenting) (citing United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33,
36-37 (1952); Unemployment Compensation Comm’n of Alaska v. Aragon, 329
U.S. 143, 155 (1946); Hormel v. Helvering, 312 U.S. 552, 556-57 (1941); 2 K.
Davis & R. Pierce, Administrative Law Treatise § 15.8, pp. 341-44 (3d ed. 1994)).
Furthermore, the Supreme Court, in Sims, unanimously agreed that “in most
cases, an issue not presented to an administrative decisonmaker cannot be
argued for the first time in federal court.” Id. at 112 (O’Connor, J., concurring
in part and concurring in the judgment) (“On this underlying principle of
administrative law, the Court is unanimous.”) (citing the majority and the
dissent). “As the Court explained long ago:
F.3d at 605-06.
21
Nos. 10-60411 et al.
‘[O]rderly procedure and good administration require that objections
to the proceedings of an administrative agency be made while it has
opportunity for correction in order to raise issues reviewable by the
courts. . . . [C]ourts should not topple over administrative decisions
unless the administrative body not only has erred but has erred
against objection made at the time appropriate under its practice.’
Id. at 115 (Breyer, J., dissenting ) (quoting L.A. Tucker Truck Lines, 344 U.S. at
37).
This ordinary rule has exceptions, but is especially important when made
mandatory by a specific statute requiring exhaustion of remedies or issues. See,
e.g., Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that
exhaustion is mandatory under the [Prison Litigation Reform Act, as provided
for by 42 U.S.C. § 1997e(a)].”); Rafeedie v. I.N.S., 880 F.2d 506 (D.C. Cir. 1989)
(Ginsburg, J., concurring) (“As I see it, a statutory exhaustion requirement,
unless Congress explicitly declares otherwise, does not impose an absolute,
unwaivable limitation on judicial review; instead, it sets a condition that may be
excused when insistence on exhaustion would threaten grave harm to the party
seeking review and would not sensibly serve the purposes Congress envisioned
in establishing that condition. In other words, a statutory exhaustion
requirement ordinarily functions as a tighter restraint than the judge-made rule,
but is not an utterly unbreachable barrier.”); see also Henderson v. Shinseki, 131
S. Ct. 1197, 1206 (2011) (explaining that although “the deadline for filing a
notice of appeal with the Veterans Court does not have jurisdictional attributes
. . . . [it] is nevertheless an important procedural rule,” and remanding for
consideration of “[w]hether this case falls within any exception to the rule”).
Section 1349(c)(3)(A), the judicial review provision applicable here,
specifically states that judicial review “shall be available only to a person who
participated in the administrative proceedings related to the actions” of the DOI
about which he or she complains. 43 U.S.C. § 1349(c)(3)(A). Moreover, § 1349(c)
further explicitly defines the exhaustion requirement as well as the scope and
22
Nos. 10-60411 et al.
limits of our judicial review by providing that: the DOI’s actions “shall only be
subject to review pursuant to the provisions of this subsection, and shall be
specifically excluded from citizen suits which are permitted pursuant to
subsection (a) of this section,” id. § 1349(c)(4); “[s]pecific objections to the action
of the [DOI] shall be considered by the court only if the issues upon which such
objections are based have been submitted to the [DOI] during the administrative
proceedings related to the actions involved,” id. §1349(c)(5); and “[t]he court of
appeals conducting a proceeding pursuant to this subsection shall consider the
matter under review solely on the record made before the [DOI],” id. § 1349(c)(6).
The petitioners have not argued or shown that any “established exception”
to this explicitly defined statutory “exhaustion” or “waiver” rule applies. Sims,
530 U.S. at 115 (Breyer, J., dissenting); see, e.g., Bethesda Hospital Ass’n v.
Bowen, 485 U.S. 399, 406-07 (1988) (exhaustion would be futile); Mathews v.
Eldridge, 424 U.S. 319, 329, n. 10 (1976) (petitioner brings constitutional
claims). This court has also explained that “exceptions [to administrative
exhaustion] apply . . . only in extraordinary circumstances” and that “[t]here are
limited bases for excusing administrative exhaustion.” Dawson Farms, LLC v.
Farm Serv. Agency, 504 F.3d 592, 606 (5th Cir. 2007) (quoting Cent. States Se.
& Sw. Areas Pension Fund v. T.I.M.E.-DC, Inc., 826 F.2d 320, 329 (5th Cir.
1987)) (internal quotation marks omitted)).
Traditional circumstances in which courts have excused a claimant’s
failure to exhaust administrative remedies include situations in
which (1) the unexhausted administrative remedy would be plainly
inadequate, (2) the claimant has made a constitutional challenge
that would remain standing after exhaustion of the administrative
remedy, (3) the adequacy of the administrative remedy is essentially
coextensive with the merits of the claim (e.g., the claimant contends
that the administrative process itself is unlawful), and (4)
exhaustion of administrative remedies would be futile because the
administrative agency will clearly reject the claim.
23
Nos. 10-60411 et al.
Id. (quoting Taylor v. U.S. Treasury Dep’t., 127 F.3d 470, 477 (5th Cir. 1997))
(internal quotation marks omitted). A court may also excuse the failure to
exhaust where “irreparable injury will result absent immediate judicial review.”
Id.; see also Ace Prop. & Cas. Ins. Co., 440 F.3d 992, 1000 (8th Cir. 2006) (“A
party may be excused from exhausting administrative remedies . . . if exhaustion
would cause irreparable harm . . . .”).
Rather than attempting to show that the present case falls within an
“established exception,” the petitioners argue that the circumstances of this case
call upon us to recognize a new exception: They contend that their failures to
participate in the administrative proceedings were caused by the DOI’s
untimely, “obscure” and “difficult to find” postings of the public versions of the
plans on the internet; and that they therefore should be excused from the
statutory requirement that they must have participated in the proceedings in
order to challenge the DOI’s approvals of the plans and to subject them to
judicial review. Assuming, without deciding, that we have the authority to
recognize such an exception or excuse, we will not do so in this case because the
petitioners have not demonstrated that their failure to participate in the
administrative proceedings was caused by the DOI’s actions or omissions.
In response to the petitioners’ claims, we asked the parties to submit
supplemental letter briefs concerning (1) what information, especially public
versions of plans, is made available in the agency’s Office of Public Information;
(2) when that information is made available; and (3) how one accesses the office
and the information it makes available. In response, the agency attached to its
initial letter brief the declaration of Michele Daigle, the agency Chief of the
Office of Information Management Services for the Gulf of Mexico Region. Ms.
Daigle stated in her declaration that:
The Office of Public Information [OPI] is located in . . . New
Orleans, Louisiana and has operating hours of 8:00 a.m. to 4:00
p.m., Monday through Friday. Four full-time employees work in the
24
Nos. 10-60411 et al.
OPI and provide help, service, and information to members of the
public who are free to access the OPI during its operating hours.
The OPI is equipped with three computers, each with a dedicated
printer, and three copy machines which are available for the public’s
use.
Ms. Daigle explained that “[t]he three computers in the OPI can be used
by the public to access the [agency] website,” and thus to access documents made
available on that website, but that “[i]f . . . members of the public need
assistance in accessing the documents, OPI employees are available to help
them. OPI employees can also be reached by telephone . . . , if members of the
public need off-site assistance.”
Additionally, Ms. Daigle provided this court with a chart regarding the
plans at issue.8
Plan Control Date Public Version of Date of Approval
Number9 Plan Was Posted on
Agency Website
S-7409 4/21/2010 4/27/2010
S-7399 4/21/2010 4/16/2010
N-9481 1/29/2010 4/1/2010
N-9483 1/29/2010 3/30/2010
S-7387 2/25/2010 3/29/2010
R-5019 not posted pursuant to 30 3/31/2010
C.F.R. § 250.285(c) (2011)
8
We recognize that in this section, we are dealing only with the remaining twelve plans
which are not moot. However, we have included information regarding all sixteen plans, in
order to provide a complete picture.
9
Plans beginning with “N” are initial plans; those beginning with “R” are revised plans;
and those beginning with “S” are supplemental plans.
25
Nos. 10-60411 et al.
R-5021 not posted pursuant to 30 5/3/2010
C.F.R. § 250.285(c) (2011)
R-5037 not posted pursuant to 30 4/21/2010
C.F.R. § 250.285(c) (2011)
S-7391 3/9/2010 4/29/2010
S-7402 4/23/2010 5/14/2010
S-7408 4/21/2010 4/21/2010
S-7413 4/23/2010 4/23/2010
N-9438 10/1/2009 5/18/2010
N-9503 3/31/2010 4/21/2010
N-9507 3/31/2010 4/26/2010
N-9509 4/6/2010 5/20/2010
Ms. Daigle said that the public versions of plans are posted in the
following manner: in addition to submitting “proprietary copies of its EP, DPP,
or DOCD,” a company seeking agency approval must also submit “eight copies
of such documents for public distribution.” The agency then makes the plans
available in a database on its website, the Public Information Data System.
However, “supplemental EPs, DPPs, and DOCDs,” (emphasis added) as
well as “revised EPs, DPPs, and DOCDs,” (emphasis added) are not required to
be posted and follow procedures that typically apply to the approval process for
EPs, DPPs, and DOCDs, unless the agency “determines [that the plans] are
likely to result in a significant change in the impacts previously identified and
evaluated” in the initial plan. 30 C.F.R. § 250.285(c) (2011). In this case, Ms.
Daigle explained, the agency determined that pursuant to that regulation,
certain revised plans were not likely to result in a significant change, and thus
did not post the public versions of those plans.
26
Nos. 10-60411 et al.
The petitioners do not contest the facts set forth in Ms. Daigle’s
declaration or the chart attached. Thus, the petitioners do not contest that the
plans were posted on the DOI website and were available through the Office of
Public Information as described by Ms. Daigle. The Center, however, argues
that the DOI may not “rel[y] on a post hoc” declaration rather than the
administrative record for the proposition that it did not post certain revised
plans pursuant to 30 C.F.R. § 250.285(c) (2011). However, the authorities that
the Center cites do not prevent our considering the parties’ letter briefs in
determining whether the DOI’s actions or omissions caused the petitioners’
failure to participate in the administrative proceedings.10 Further, the
petitioners have not expressly alleged or argued that they actually tried without
success to access the plans at issue on the DOI website, or through visits or
communications with personnel at the DOI’s Office of Public Information. Also,
computer searches by this court’s attorneys after this case was submitted
indicate that a reasonably qualified attorney or other researcher should have
been able to find public versions of plans on the DOI’s website containing
information about particular plans pending before the DOI.
10
Matter of Bell Petroleum Services, Inc., 3 F.3d 899 (5th Cir. 1993), dealt with the
review of an agency action on its merits, and in that context the court explained that it would
“not accept the [agency’s] post-hoc rationalizations in justification of its decision.” Id. at 905.
Here, we are not reviewing the merits of the DOI’s agency actions in approving EPs and
DOCDs. At this juncture, assuming arguendo that we could recognize an exception or excuse
from §1349(c)(3)(A)’s provision that judicial review shall be available only to a person who
participated in the administrative proceedings, we are considering whether the petitioners
would be entitled to such an excuse or exception. In Bowen v. Michigan Academy of Family
Physicians, 476 U.S. 667 (1986) the Court referred to the “strong presumption that Congress
intends judicial review of administrative action,” id. at 670, in holding that in neither 42
U.S.C. § 1395ff (1982 ed. and Supp. II) nor § 1395ii (1982 ed., Supp. II), had Congress barred
judicial review of regulations promulgated under Part B of the Medicare program. That
presumption does not prevent Congress from adopting rules requiring exhaustion of
administrative remedies before a litigant may seek judicial review of an agency’s actions. See,
e.g., Henderson v. Shinseki, 131 S.Ct. 1197, 1206 (2011) (explaining that although “the
deadline for filing a notice of appeal with the Veterans Court does not have jurisdictional
attributes[,] [t]he 120-day limit is nevertheless an important procedural rule.”).
27
Nos. 10-60411 et al.
The DOI’s performance in the proceedings prior to its approval of the plans
was by no means flawless. Of the twelve plans dealt with in this section, the
DOI approved two on the same day that their public versions were posted on the
internet; and in one instance the agency approved the plan before it had been
posted. The petitioners’ showing in this case, however, does not persuade us
that they would have participated in those proceedings had there been more
time between the postings and the approval of the plans. In respect to the clear
majority of the plans at issue, there was ample time between the posting and the
DOI’s approval of the plan for a diligent interested party to participate in the
administrative proceedings. Moreover, the petitioners have failed to offer any
evidence or persuasive argument that the DOI’s actions or omissions, rather
than their own inattention or unpreparedness, caused their failure to participate
in any of the administrative proceedings. Consequently, even if we were
convinced that we have equitable powers to create an exception to § 1349(c)(3)’s
mandatory statutory requirement that judicial review shall be available only to
a person who participated in the administrative proceedings, we conclude that
the petitioners have not shown that they would be entitled to such an excuse
from the rule in this case.
The petitioners’ reliance on Bowen v. City of New York, 476 U.S. 467(1986), Consolidated Bearings Co. v. United States, 348 F.3d 997 (Fed. Cir.
2003), and Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506,
550 (D.C. Cir. 1983) is misplaced. None of these precedents controls our decision
here.
In Bowen, the Supreme Court held that the application of an illegal,
secret, internal policy by the Secretary of Health and Human Services in
adjudicating Social Security Act claims equitably tolled the limitations periods
for seeking judicial review and waived the exhaustion of administrative
remedies. Id. at 480-86. Moreover, the Court upheld the district and appellate
28
Nos. 10-60411 et al.
courts’ finding that the harm caused by the wrongful denials of disability claims
was irreparable. Id. at 484. The Court stated: “These claimants stand on a
different footing from one arguing merely that an agency incorrectly applied its
regulation. Rather, the District Court found a systemwide, unrevealed policy
that was inconsistent in critically important ways with established regulations.”
Id. at 485.
In the present case, the petitioners have made no showing that the DOI
applied an illegal, clandestine, internal policy, such as the district court in
Bowen found that the agency there had pursued after a seven day trial. Instead,
the petitioners present legal argument only, viz., in effect, that the agency
incorrectly applied its regulation. As the Supreme Court in Bowen indicated,
that is not a unique situation that justifies a court in tolling limitations periods
or waiving statutory exhaustion of remedy requirements. Moreover, the
petitioners do not even contend that the well-established irreparable injury
exception to the requirement to exhaust administrative remedies applies in this
case.
In Consolidated Bearings, the Federal Circuit rejected the government’s
argument that Consolidated had failed to exhaust its administrative remedies,
stating that the “record in this case does not disclose any statutory or regulatory
provision that allows a party to challenge the manner in which [the agency]
implements the final results of an administrative review,” and, therefore,
“[w]ithout an administrative procedure to exhaust, this court holds that
Consolidated did not violate the exhaustion doctrine.” 348 F.3d at 1004.
Contrary to the petitioners’ argument, however, neither Consolidated Bearing’s
holding nor its language is applicable to the present case. Here, 43 U.S.C. §
1349 sets forth the statutory provisions that allow litigants to subject the DOI’s
approval of exploration plans and development and production plans to judicial
review, § 1349(c)(2), and the rule that requires that they must first exhaust their
29
Nos. 10-60411 et al.
administrative remedies by participating in the administrative proceedings
related to the DOI’s actions which they seek to challenge, § 1349(c)(3). Thus,
unlike the situation in Consolidated Bearings, here there was a statutory vehicle
by which the petitioners could have challenged the DOI’s actions if they had met
the statutory requirement of exhaustion of remedies by participating in the
administrative proceedings. And, as explained above, the agency had a system
for placing public versions of plans on its website, and provided assistance to
those navigating the website via the Office of Public Information. In other
words, Consolidated Bearings is the inapposite obverse of the present case and
therefore has no bearing here.
In Small Refiner Lead Phase-Down Task Force, the District of Columbia
Circuit held that, under the Administrative Procedures Act (APA) and the Clean
Air Act, which required the EPA to issue a “proposed rule” before issuing a final
regulation and to give a detailed explanation of its reasoning at the “proposed
rule” stage of a regulation as well as at the final rule stage, the EPA’s regulation
was invalid due to the lack of adequate notice given to small refiners affected by
the regulation. 705 F.2d at 548-51. That case is clearly inapposite here. The
present case does not involve rulemaking at all, much less the stringent
rulemaking procedures required by the Clean Air Act or the APA.
The petitioners have not shown that, under OCSLA, the DOI’s actions or
omissions caused their failure to participate in the administrative proceedings,
as required by §1349(c)(3), in order to subject the DOI’s approval of the plans
involved here to judicial review. For these reasons we conclude that, if we could
recognize an exception to §1349(c)(3)(A)’s requirement that judicial review shall
be available only to a person who participated in the pertinent administrative
proceeding, the petitioners have not shown that they are entitled to such an
exception or excuse in this case.
30
Nos. 10-60411 et al.
c. The Center’s letter
The Center also argues that a letter dated May 18, 2010, signed by its
Oceans Program Director, Miyoko Sakashita, addressed to the Secretary of the
Interior, the Director of the Minerals Management Service, and the Gulf of
Mexico Regional Director of the MMS, constituted its “participation” in the
administrative proceedings involved in this case “to the maximum extent
practicable.”11 The letter “urges the Secretary to rescind the Department of
Interior’s policy of categorically excluding drilling plans from thorough
environmental review under the National Environmental Policy Act (‘NEPA’).”
(citing Department of Interior Manual 516 DM 15.4(C)(10)). “Additionally,” the
letter further urges, “the Secretary should rescind all approvals of (1) exploration
plans (‘EPs’) and (2) Development Operations Coordination Documents
(‘DOCDs’) for offshore drilling in the Gulf of Mexico that the Minerals
Management service (hereinafter, ‘MMS’ or ‘the Secretary’) categorically
excluded pursuant to the Department’s policy and have not yet been
implemented.” The letter proceeds to criticize the Secretary’s “policy” and past
practices of approving “drilling activities” as “categorically excluded from NEPA
review” as “arbitrary when it was adopted.” “Moreover,” the letter states that
“in light of the Deepwater Horizon spill, this policy is now wholly untenable.
Accordingly the Secretary has violated and continues to violate the spirit and the
letter of NEPA.” The letter continues with a detailed discussion of the Gulf of
Mexico ecosystem; the emerging effects of the Deepwater Horizon oil spill; the
use of categorical exclusions from NEPA review in the Gulf of Mexico; and why,
especially “[i]n light of the Deepwater Horizon oil spill,” the categorical exclusion
policy and approvals of drilling plans in the Gulf of Mexico under that policy
should be rescinded. In its conclusion, the letter states:
11
According to Ms. Sakashita’s declaration, the letter was sent on May 18, 2010 to the
named addressees.
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Nos. 10-60411 et al.
The only lawful, responsible course of action open to MMS in light
of the Deepwater Horizon disaster and the agency’s scandalous
track record is to rescind the categorical exclusion policy as it
applies to drilling plans, and rescind all EP and DOCD approvals
that have been issued under [categorical exclusions] which have not
yet been implemented. These approvals were issued in violation of
NEPA, the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C.
§§1331 et seq., and the Administrative Procedure Act (“APA”), 5
U.S.C. §§551 et seq. Under OCSLA, the statute that dictates MMS’s
offshore oil and gas exploration and development permitting
program, MMS may only permit offshore oil and gas activities that
fully comply with NEPA. 43 U.S.C. § 1866(a). Moreover, these
activities may only be permitted if they are “subject to
environmental safeguards.” 43 U.S.C. § 1332(3). MMS may suspend
oil and gas activities when doing so is necessary to conduct
environmental analyses or otherwise fulfill NEPA requirements. 30
C.F.R. § 250.172(d); see also id. at 250.172(b) (providing for
suspension of operations when “activities pose a threat of serious,
irreparable, or immediate harm or damage. . . . includ[ing] a threat
to life (including fish and other aquatic life) . . . or the marine,
coastal, or human environment.”). In this case, MMS has not only
the authority but the irrefutable responsibility to prevent another
disaster like the Deepwater Horizon explosion and spill by
immediately suspending Gulf of Mexico drilling activities authorized
via CEs, rescinding all such approvals, and undertaking thorough
NEPA review for all such proposals.
(second, third, and fourth alteration in original).
Without intimating any view as to the merits of the criticism that the
Center levels at the DOI’s approval of EPs and DOCDs in the Gulf of Mexico, we
interpret the writing as a thorough condemnation of the DOI’s policy and past
practices, and not as an act of participating in any individual ongoing proceeding
in which a lessee is seeking the DOI’s approval of an EP or DOCD. The letter
does not specify by name or number any particular proposed exploratory or
development plan, but instead calls upon the DOI to “rescind” all plans that have
been approved and not yet implemented; it does not state that the Center
intends or desires to participate in any particular ongoing or anticipated
32
Nos. 10-60411 et al.
proceeding; and it does not urge the DOI to disapprove of any EP or DOCD
which has not yet been acted upon. Accordingly, we do not think the Center’s
letter can fairly be interpreted to amount to participation in the administrative
proceedings related to an action by the DOI on a particular EP or DOCD under
43 U.S.C. § 1349(c)(3).
CONCLUSION
For these reasons, four of the petitioners’ petitions for judicial review are
dismissed as moot, and their remaining twelve petitions are dismissed because
of their failure to participate in the administrative proceedings.
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