Southern Utah Wilderness Alliance v. Palma

FILED
United States Court of Appeals
Tenth Circuit
January 8, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
SOUTHERN UTAH WILDERNESS
ALLIANCE; NATURAL RESOURCES
DEFENSE COUNCIL; THE WILDERNESS
SOCIETY; NATIONAL PARKS
CONSERVATION ASSOCIATION;
GRAND CANYON TRUST,
Plaintiffs-Appellants,
v. No. 11-4094
JUAN PALMA, in his official capacity as
Director of the Bureau of Land Management
Utah Sate Office; BUREAU OF LAND
MANAGEMENT; UNITED STATES
DEPARTMENT OF THE INTERIOR,
Defendants-Appellees,
and
KIRKWOOD OIL AND GAS, LLC;
WILLIAM C. KIRKWOOD,
Intervenor-Defendants-Appellees.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:07-CV-00199-CW)
Stephen H.M. Bloch of Southern Utah Wilderness Alliance, Salt Lake City, Utah
(David Garbett of Southern Utah Wilderness Alliance, Salt Lake City, Utah; and
Sharon Buccino of Natural Resources Defense Council, Washington, D.C., with
him on the briefs), for Plaintiffs-Appellants.
Jeffrey E. Nelson, Assistant United States Attorney (Carlie Christensen, United
States Attorney, with him on the brief), Salt Lake City, Utah, for Defendants-
Appellees.
William E. Sparks (Bret A. Sumner with him on the brief) of Beatty & Wozniak,
P.C., Denver, Colorado, for Intervenor-Defendants-Appellees.
Before LUCERO, SEYMOUR, and TYMKOVICH, Circuit Judges.
SEYMOUR, Circuit Judge.
Several environmental groups 1 (collectively referred to as “SUWA”)
challenge decisions made by the Bureau of Land Management (“BLM”) and the
Interior Board of Land Appeals (“IBLA”). At issue is the legality of thirty-nine
oil and gas leases in Southern Utah, owned by Kirkwood Oil and Gas, LLC and
William C. Kirkwood (collectively “Kirkwood”). In the 1980s, Kirkwood applied
to have its oil and gas leases converted to combined hydrocarbon leases, which
would allow Kirkwood to extract oil from tar sands. To date, BLM has never
accepted or rejected Kirkwood’s applications. Between 2006 and 2008, BLM and
IBLA issued several decisions declaring that the underlying oil and gas leases
1
Southern Utah Wilderness Alliance, Natural Resources Defense Council,
The Wilderness Society, National Parks Conservation Association, and Grand
Canyon Trust.
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were “suspended” pending review of the conversion applications. SUWA alleges
BLM and IBLA violated the Mineral Leasing Act and other federal laws by
retroactively deeming these thirty-nine leases to be suspended, thereby avoiding
expiration of the leases according to their terms. The district court held SUWA
did not have standing to bring its claims and dismissed the suit for lack of subject
matter jurisdiction.
We have jurisdiction under 28 U.S.C. § 1291. Although the district court
misapplied the law in important respects with regard to standing, as we explain
below, we ultimately hold that this action is not ripe for review. Accordingly, we
affirm the district court’s dismissal of the action for lack of subject matter
jurisdiction.
I.
A. Statutory And Regulatory Background
“Tar sands are loosely defined as any sedimentary rock impregnated with
heavy, viscous crude oil that cannot be recovered by conventional techniques but
rather requires an external energy source (e.g., heat) to mobilize the oil.” Supp.
App. at 33. Areas with substantial tar sands are also likely to have oil and gas.
The Combined Hydrocarbon Leasing Act of 1981, Pub. L. No. 97-78, 95
Stat. 1070, was enacted to encourage the production of oil from tar sand deposits
in the United States. The Act amended the Mineral Leasing Act and authorized
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the Secretary of the Interior to issue combined hydrocarbon leases (“CHLs”) in
areas that contain substantial deposits of tar sands and have been designated as
“Special Tar Sand Areas” (“STSAs”). See 30 U.S.C. §§ 181, 226; 43 C.F.R.
§ 3140.0-5(c). 2 A CHL allows the lease owner to extract oil from tar sands, as
well as oil and gas from traditional deposits. See 43 C.F.R. § 3140.0-5(a).
Under the Combined Hydrocarbon Leasing Act, owners of traditional oil
and gas leases in STSAs could convert their leases into CHLs. 30 U.S.C.
§ 226(n). An oil and gas lease was eligible for conversion into a CHL if it was
issued prior to November 16, 1981 and was located in an STSA. Id.§ 226(n)(1)(A). Only the owner of the lease could submit the application for
conversion. 43 C.F.R. § 3140.2-2. The owner of an eligible lease had a two year
window – until November 15, 1983 – to submit an application to the Utah State
Office of BLM. 30 U.S.C. § 226(n)(1)(A); 43 C.F.R. § 3140.3-1. The application
required, inter alia, a “plan of operations” for development. 30 U.S.C.
§ 226(n)(1)(A); 43 C.F.R. § 3140.2-3(a).
As provided by BLM regulations in effect at the time:
Upon determination that the plan of operations is complete, the
supervisor shall notify the authorized officer who shall then suspend
the term of the Federal oil and gas lease(s) as of the date that the
complete plan was filed until the plan is finally approved or rejected.
Only the term of the oil and gas lease shall be suspended, not any
operation and production requirements thereunder.
2
In this opinion, unless otherwise indicated, we cite to the 2012 version of
the Code of Federal Regulations.
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43 C.F.R. § 3140.2-3(g)(1) (1982), 47 Fed. Reg. 22,474, 22,480 (May 24, 1982). 3
Federal oil and gas leases are generally issued for a primary term of ten years, 30
U.S.C. § 226(e), and the suspension prevents the lease term from expiring while
the conversion application is pending. See 43 C.F.R. § 3103.4-4(b) (“[N]o lease
shall be deemed to expire during any suspension.”). 4 The Combined Hydrocarbon
Leasing Act mandates that “The Secretary shall act upon a proposed plan of
operations within fifteen months of its submittal.” 30 U.S.C. § 226(n)(1)(B).
If the plan of operations is found acceptable and is approved, the oil and
gas lease is converted into a CHL with a new effective start date and a new ten-
year term. 43 C.F.R. §§ 3140.4-1, 3140.4-2, 3140.5. If the application is
rejected, then the lease suspension is lifted. Id. § 3140.2-3(g)(1) (the lease term
shall be suspended “until the plan is finally approved or rejected”). Thereafter,
the original oil and gas lease remains valid until the expiration of its term, which
is extended by the duration of the suspension. See id. § 3103.4-4(b) (“The term
3
The language of this regulation changed in 1990. The current version of
43 C.F.R. § 3140.2-3(g)(1) states:
Upon determination that the plan of operations is complete, the
authorized officer shall suspend the term of the Federal oil and gas
lease(s) as of the date that the complete plan was filed until the plan
is finally approved or rejected. Only the term of the oil and gas lease
shall be suspended, not any operation and production requirements
thereunder.
4
The oil and gas leasing regulations found in 43 C.F.R. part 3100 are
“applicable, as appropriate” to CHLs as well. 43 C.F.R. § 3140.1-4(e).
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of any lease shall be extended by adding thereto the period of the suspension
. . . .”); cf. 30 U.S.C. § 226(n)(2) (“Except as provided in this section, nothing in
the Combined Hydrocarbon Leasing Act of 1981 shall be construed to diminish or
increase the rights of any lessee under any oil and gas lease issued prior to
November 16, 1981.”). 5
The STSAs at issue here are the Circle Cliffs STSA and the Tar Sand
Triangle STSA. See 45 Fed. Reg. 76,801 (Nov. 20, 1980). Both of these STSAs
are located in Southern Utah. The Tar Sand Triangle STSA is an area comprising
approximately 230 square miles. The Circle Cliffs STSA covers approximately
215 square miles.
Some of the leases at issue in this case are located on lands that are now
subject to certain restrictions on mineral leasing. As an illustrative example,
Kirkwood’s Circle Cliffs STSA leases are within the Grand Staircase-Escalante
National Monument. This monument was established in 1996 by Presidential
Proclamation. 61 Fed. Reg. 50,223 (Sept. 18, 1996). The proclamation withdrew
5
This interpretation of the Combined Hydrocarbon Leasing Act and its
implementing regulations is consistent with BLM’s interpretation. See, e.g., Aplt.
Supp. Authority (Jan. 25, 2012), 1984 Tar Sand Triangle Draft Environmental
Impact Statement at 4-117 (“Any existing federal oil and gas leases not converted
to combined hydrocarbon leases would remain valid oil and gas leases until the
expiration of their original term and could still be developed for oil and gas.”);
Letter from BLM to Altex Oil Corp. and Devon SFS Operating, Inc., Re:
UTU-72405 (Jan. 10, 2002), Supp. App. at 90 (“If you no longer wish to convert
the oil and gas leases into a CHL, . . . the suspensions will be lifted on the oil and
gas leases, and they will revert to their individual lease terms.”).
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all federal lands and interests within the monument from new leasing, but
specified that “[t]he establishment of this monument is subject to valid existing
rights.” Id. at 50,225; see also 30 U.S.C. § 181 (excluding lands containing
deposits of oil and gas in national parks and monuments from disposition). As a
result, new mineral leasing within the monument is prohibited, although mineral
development is permitted under existing leases.
B. Factual Background
In 1982 and 1983, Kirkwood or its predecessors applied to convert oil and
gas leases in the Circle Cliffs and Tar Sand Triangle STSAs into CHLs. These
leases, including the thirty-nine leases at issue in this case, were grouped into
three applications: UTU-72405, UTU-73098, and UTU-72120. 6 The parties agree
that between 1983 and 1984, BLM determined that all three applications
contained complete plans of operations.
The parties also agree that once BLM determined Kirkwood had submitted
complete plans of operations for these three applications, the leases included in
the applications should have been suspended. See 30 U.S.C. § 226(n)(1)(B); 43
6
A single application for CHL conversion could include multiple leases.
Two of the applications, UTU-72405 and UTU-73098, include leases within the
Tar Sand Triangle STSA. UTU-72405 includes six of the challenged leases.
UTU-73098 includes eight of the challenged leases. The third application, UTU-
72120, includes leases within the Circle Cliffs STSA, twenty-five of which are
being challenged by SUWA. Although each of the applications also includes
some leases that have not been challenged by SUWA, we only discuss the thirty-
nine leases at issue in this case.
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C.F.R. § 3140.2-3(g)(1) (1982). They disagree, however, about whether the
leases actually were suspended at that time. According to Kirkwood and the
government, the leases were automatically suspended as of the dates of the filings
of complete plans of operations, and they have continued to be suspended since
then. According to SUWA, however, the suspension of the leases was not
automatic and BLM failed to suspend them in the 1980s. See 43 C.F.R.
§ 3140.2-3(g)(1) (1982) (“Upon determination that the plan of operations is
complete, the supervisor shall notify the authorized officer who shall then
suspend the term of the Federal oil and gas lease(s) as of the date that the
complete plan was filed until the plan is finally approved or rejected.”). SUWA
notes that the administrative record for these applications does not contain any
notices suspending the terms of the leases. See, e.g., William C. Kirkwood, 175
IBLA 292, 297 (2008) (“[T]he record [regarding UTU-72120] does not contain a
notice suspending the terms of the leases subject to the application . . . .”). In its
view, because the lease terms were not suspended, the oil and gas leases expired
sometime between 1984 and 1992.
The parties also disagree about the effect of the suspension, if the leases
were suspended. Kirkwood contends that its leases are subject to a suspension of
operations, not only a suspension of term, and this suspension prevents it from
engaging in operations on the leasehold. According to Kirkwood, “[B]ecause the
[Combined Hydrocarbon Leasing Act] mandates that BLM suspend the 39 oil and
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gas leases which are the foundation of Kirkwood’s CHL Applications, Kirkwood
presently has no right to enter upon, explore or otherwise impact the subject lands
while the oil and gas leases are suspended and the CHL Applications are
pending.” Aplt. App. at 110. Several documents in the administrative record
corroborate its position. At certain points in the CHL application process,
including in the BLM decisions challenged by SUWA in this case, BLM has
characterized the leases as being under a “suspension of operations.” See Supp.
App. at 112, 117, 123.
In contrast, SUWA and the government both maintain that any suspension
was only of the term of the lease. Thus, according to the government, “The
suspension affects only the terms of the leases, not the lessees’ right to conduct
operations and production on the leases.” Aplt. App. at 119; see also id. at 118 &
n.2. SUWA agrees. See Aplt. Br. at 11 n.2 (“Suspensions granted under the CHL
regulations only suspend the term of a lease . . . .”). The Combined Hydrocarbon
Leasing Act and its implementing regulations lend support for SUWA and the
government’s interpretation. Notably, the regulations dictate that “only the term”
of a lease is to be suspended while a CHL application is pending, “not any
operation and production requirements thereunder.” 43 C.F.R. § 3140.2-3(g)(1);
see also 30 U.S.C. § 226(n)(1)(B) (“[T]he Secretary shall suspend the running of
the term of any oil and gas lease proposed for conversion until the plan is finally
approved or disapproved.”). If SUWA and the government are correct, a lessee
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would not necessarily be prevented from operating or producing on the lease by
virtue of a pending CHL application.
Despite the Combined Hydrocarbon Leasing Act’s requirement that the
Secretary act within fifteen months, 30 U.S.C. § 226(n)(1)(B), BLM has never
approved or rejected Kirkwood’s three CHL conversion applications. In 2006 and
2007, after the passage of twenty-five years, BLM issued a series of interim
decisions (the “BLM Decisions”) relating to Kirkwood’s applications. In October
2006, BLM stated the eight leases in application UTU-73098 “were entitled to a
suspension of operations as of the date a complete [plan of operations] was filed,
November 29, 1983.” Supp. App. at 122 (citing 43 C.F.R. § 3140.2-3(g)(1)).
BLM explained that rentals are required during a suspension, stated that
Kirkwood had not made the necessary payments, and requested payment for the
previous seven years. Kirkwood was also informed that if its CHL application
was denied for failing to make the payments, “The leases will continue through
their term as long as rentals or royalties are timely paid.” Id. at 124.
In January 2007, BLM issued decisions on UTU-72120 and UTU-72405.
As to application UTU-72405, one of the six challenged leases was “excluded”
from the application and rejected because the application was not filed by the
record title holder of the lease. Id. at 116-17. The five remaining leases in this
application were “deemed to have been suspended as of the date of filing the
complete plan, July 19, 1983.” Id. at 117 (citing 43 C.F.R. § 3140.2-3(g)(1)).
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BLM again required Kirkwood to submit payment of seven years’ rentals for
these “suspended” leases. Kirkwood was notified that if “the CHL is denied, we
will lift the suspension on leases. The leases will continue through their term as
long as rentals or royalties are timely paid.” Id. at 118.
As to UTU-72120, BLM determined the terms of five of the challenged
leases had expired before a complete plan of operations for the conversion
application was filed. As a result, those leases had “terminated by operation of
law.” Id. at 111. Twelve other leases were excluded from the application
because BLM determined the application was not submitted by the record title
holder of the leases. The remaining eight leases were “deemed to have been
suspended as of the date of filing the complete plan, August 8, 1983.” Id. at 112
(citing 43 C.F.R. § 3140.2-3(g)(1)). BLM requested seven years of back payment
of rent for these leases. Kirkwood was notified that if “the CHL application is
denied, we will lift the suspension on these leases and readjust the term of the
lease [sic].” Id. at 112-13.
Kirkwood appealed parts of the BLM Decisions to IBLA. 7 In particular,
Kirkwood disagreed with BLM’s findings that certain oil and gas leases had
terminated prior to its submission of a complete plan of operations, that other
7
SUWA moved to intervene in the appeal, but IBLA denied the motion.
Instead, SUWA submitted an amicus brief for each appeal. In its amicus brief,
SUWA raised the same arguments that it raises in this litigation. See Kirkwood,
175 IBLA at 301, 303.
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leases were excluded for not having been filed by the record title holders, and that
it owed back rent to BLM on the suspended leases. IBLA agreed with Kirkwood,
and on August 15, 2008 it reversed the BLM Decisions on these issues.
Kirkwood, 175 IBLA at 319-20. IBLA reinstated the leases excluded by BLM,
decided that BLM was equitably estopped from claiming Kirkwood owed back
payments for the leases it had deemed suspended, and allowed Kirkwood to
submit letters from the record title holders to cure the deficient applications. Id.C. SUWA’s Challenge to the Leasing Decisions
In April 2007, SUWA filed its original complaint in the present matter,
challenging the BLM Decisions that deemed the various oil and gas leases to be
suspended as of the dates of the filings of complete plans of operation. On
August 20, 2008, the district court dismissed SUWA’s suit without prejudice. It
held that SUWA’s claims were not ripe for review because IBLA was in the
process of considering Kirkwood’s appeals of the BLM decisions on UTU-72120
and UTU-72405. Unbeknownst to the district court, IBLA had already issued its
decision. SUWA notified the district court of the decision and was given leave to
file an amended complaint.
SUWA filed its Amended Complaint on September 23, 2008. That
complaint again challenges the BLM Decisions, as well as the 2008 IBLA
decision (collectively the “Challenged Decisions”). SUWA contends the thirty-
nine leases at issue in this case terminated years ago when BLM failed to take
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action to suspend their termination once complete plans of operations were
submitted for the CHL applications. In the alternative, SUWA contends that even
if the leases were automatically suspended in 1983 and 1984 when the plans of
operation were filed, as defendants contend, the leases terminated when Kirkwood
failed to make required rental payments during the suspension period.
SUWA argues that the Challenged Decisions illegally suspended the leases
retroactively in violation of the Mineral Leasing Act and other federal laws. In
particular, it maintains the Challenged Decisions violated the Combined
Hydrocarbon Leasing Act and its implementing regulations by deeming the leases
to be suspended after they had terminated. It contends these “retroactive
suspensions” of the leases subsequent to their termination effectively resulted in
what it characterizes as the “issuance” of thirty-nine new oil and gas leases.
SUWA also claims BLM and IBLA issued some of these “new” leases unlawfully,
because they are in areas now barred from new mineral leasing. See 30 U.S.C.
§ 181; 43 C.F.R. § 3100.0-3(a)(2)(viii). Even in areas where new leasing may be
permissible, SUWA contends BLM failed to comply with the applicable
regulations under the Mineral Leasing Act. For example, SUWA alleges BLM
violated mandatory procedures under the Mineral Leasing Act and its
implementing regulations by issuing new leases in the Glen Canyon National
Recreation Area without seeking the requisite consent of the Regional Director of
the National Park Service. See Amended Complaint, App. at 61 (citing 43 C.F.R.
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§§ 3100.0-3(g)(4), 3109.2).
According to the Amended Complaint, “SUWA members frequently visit
and recreate (e.g., hunt, camp, bird, sightsee, and enjoy solitude) throughout the
lands that are the subject of this complaint . . . .” Id. at 47. SUWA alleges the
inevitable drilling that will occur under these leases – regardless of whether they
are ultimately converted to CHLs or remain traditional oil and gas leases – “will
have dramatic, lasting negative impacts including destruction of pre-historic and
historic cultural resources, degradation of air quality and pristine night skies, loss
of wildlife habitat, and loss of wilderness values and characteristics.” Id. at 46.
“This inevitable surface disturbance harms the interest of SUWA and its members
in the leased lands.” Id. at 47.
The district court dismissed SUWA’s Amended Complaint for lack of
standing. It determined SUWA failed to establish an injury in fact. In part
because the district court had not considered relevant affidavits from the
administrative record, SUWA filed a motion to alter or amend the judgment. The
court permitted SUWA to supplement the record with further information to
establish standing, and SUWA submitted additional affidavits. The court
concluded the supplemental materials failed to cure the standing deficiency and
dismissed the action. SUWA appeals.
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II.
Kirkwood and BLM argue that this action is not justiciable because SUWA
lacks standing to bring the case. Kirkwood contends in addition that the action is
not ripe for review. Both standing and ripeness present the threshold
jurisdictional question of whether a court may consider the merits of a dispute.
Morgan v. McCotter, 365 F.3d 882, 887 (10th Cir. 2004) (“justiciability focus[es]
on the twin questions of whether Plaintiff has standing to maintain this action and
whether the case is ripe for judicial review.”). We address each issue in turn.
A. Standing
We review de novo the question of whether SUWA has standing. Ward v.
Utah, 321 F.3d 1263, 1266 (10th Cir. 2003). When evaluating a plaintiff’s
standing at the stage of a motion to dismiss on the pleadings, “both the trial and
reviewing courts must accept as true all material allegations of the complaint, and
must construe the complaint in favor of the complaining party.” Warth v. Selden,
422 U.S. 490, 501 (1975). “We also must construe the statements made in the
affidavits in the light most favorable to the petitioner.” Initiative & Referendum
Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006) (en banc) (internal
quotation marks omitted). 8 At the pleading stage, “general factual allegations of
8
Because the district court permitted SUWA to submit supplemental
affidavits to demonstrate standing, we consider those affidavits as well. See
Warth, 422 U.S. at 502 (examining “all materials of record” when evaluating
standing).
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injury resulting from the defendant’s conduct may suffice, for on a motion to
dismiss we ‘presum[e] that general allegations embrace those specific facts that
are necessary to support the claim.’” Defenders of Wildlife, 504 U.S. at 561
(quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)) (alteration in
original); see also Bennett v. Spear, 520 U.S. 154, 168 (1997) (same).
Where, as here, the original complaint has been superceded by an amended
complaint, we examine “the amended complaint in assessing a plaintiff’s claims,
including the allegations in support of standing.” Mink v. Suthers, 482 F.3d 1244,
1254 (10th Cir. 2007). Nevertheless, “standing is determined at the time the
action is brought . . . and we generally look to when the complaint was first filed,
not to subsequent events” to determine if a plaintiff has standing. Id. at 1253-54
(citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 180 (2000)); see also Davis v. FEC, 554 U.S. 724, 735 (2008) (“[T]he
standing inquiry remains focused on whether the party invoking jurisdiction had
the requisite stake in the outcome when the suit was filed.”); Nova Health Sys. v.
Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005) (“Standing is determined as of the
time the action is brought.”). Accordingly, “[t]he initial standing of the original
plaintiff is assessed at the time of the original complaint, even if the complaint is
later amended.” Schreiber Foods, Inc. v. Beatrice Cheese, Inc., 402 F.3d 1198,
1202 n.3 (Fed. Cir. 2005); see also Lynch v. Leis, 382 F.3d 642, 647 (6th Cir.
2004) (similar). Thus, although we examine the allegations in SUWA’s Amended
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Complaint, our inquiry focuses on whether SUWA had standing when the original
complaint was filed in April 2007.
The doctrine of standing “is an essential and unchanging part of the case-
or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992) (citing Allen v. Wright, 468 U.S. 737, 751 (1984)). Absent
a plaintiff with constitutional standing, federal courts lack jurisdiction. Summers
v. Earth Island Inst., 555 U.S. 488, 492-93 (2009). To satisfy Article III’s
standing requirements, a plaintiff must show:
(1) it has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action
of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, 528 U.S. at 180-81 (citing Defenders of Wildlife, 504 U.S. at
560-61). “The element of traceability requires the plaintiff to show that the
defendant is responsible for the injury, rather than some other party not before the
court. Finally, the requirement of redressability ensures that the injury can likely
be ameliorated by a favorable decision.” S. Utah Wilderness Alliance v. Office of
Surface Mining Reclamation & Enforcement, 620 F.3d 1227, 1233 (10th Cir.
2010).
“An association has standing to bring suit on behalf of its members when
its members would otherwise have standing to sue in their own right, the interests
at stake are germane to the organization’s purpose, and neither the claim asserted
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nor the relief requested requires the participation of individual members in the
lawsuit.” Friends of the Earth, 528 U.S. at 181. Here, because the plaintiff
groups’ claims and requested relief are germane to their purposes and do not
require the participation of any individual member, these organizations have
standing if any one member would have standing to sue in his or her own right.
SUWA’s alleged injury results from Kirkwood’s right to engage in mineral
development on the lands at issue in the thirty-nine leases. The Amended
Complaint states that SUWA’s members frequently visit and use the lands
affected by the leasing decisions for various purposes, including hunting,
camping, bird watching, sightseeing, and enjoying solitude. SUWA asserts that
the retroactive suspension of the thirty-nine leases, and the inevitable “surface
disturbance on the leasehold” that will result, harms the interests of SUWA and
its members. App. at 47.
SUWA relies on the declarations of one of its members who is also an
employee, Ray Bloxham, to show that it has standing to sue. 9 In the six
declarations ultimately submitted to the district court, Mr. Bloxham detailed his
9
We are unpersuaded by Kirkwood’s claim that Mr. Bloxham’s
employment at SUWA disqualifies him from declaring his personal interests, as a
member of SUWA, in the environment of Southern Utah and in this controversy
in particular. Mr. Bloxham’s declarations demonstrate a longstanding interest in
the environment and in the natural beauty of Utah. His personal interests align,
rather than conflict, with those of his employer. Because Mr. Bloxham is also a
member of the other plaintiff organizations, our analysis is the same for all of
these organizations.
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interest in the public lands at issue in this case. He explained he has “visited both
the Tar Sand Triangle STSA and the Circle Cliffs STSA and the public lands
where these leases are located numerous times beginning in 1995.” Id. at 277.
He described the areas he visited during specific times. For example, he stated
that during a September 2006 trip to the Tar Sand Triangle STSA,
I drove down the Flint Trail and I passed by Bagpipe Butte, Sewing
Machine Pass, Elaterite Butte, Gunsight Butte, and the Block. I
enjoyed the solitude, scenery, and opportunities for primitive
recreation of the area. I did not see any other parties during my
entire visit. On previous visits, I have camped on The Big Ridge, I
have driven the Poison Spring Canyon road to the North Hatch
Canyon Road, I have hiked around The Block, and I have driven the
Doll House road. This area is utterly remote. It contains remarkably
deep and stunning canyons, expansive vistas, huge cliffs, and awe-
inducing silence.
Id. at 264. Similarly, Mr. Bloxham described trips in June 2004 and February
2007 through the Circle Cliffs STSA:
I hiked in Little Death Hollow Canyon, drove the Wolverine Loop
road, camped under the Circle Cliffs, and explored Moody and
Middle Moody Canyons and Colt Mesa. In that area I have also
explored the Pioneer Mesa and Studhorse Peaks proposed wilderness
units and have taken scenic tours of the area. I have enjoyed the
solitude, scenery, and opportunities for primitive recreation in the
area. Like much of the Grand Staircase-Escalante National
Monument, the Circle Cliffs STSA is remote and quiet. It is etched
with canyons, complimented by expansive views, and beautifully
still.
Id. at 256. He clarified that these “lengthy descriptions of travel . . . highlighted
the areas that I have visited, all of which either enter leases at issue here or afford
views of those locations.” Id. at 277.
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He further explained, “Tar sands development, or conventional oil and gas
development, in [the Tar Sand Triangle STSA] would result in a tragic loss of
remoteness, wildness, and pristinity,” and development within the Circle Cliffs
STSA “would destroy the incredible character of this unique and picturesque
area.” Id. at 264-65. “My health, recreational, spiritual, educational, aesthetic,
and other interests are directly affected and irreparably harmed by the BLM and
IBLA’s decisions to retroactively suspend the thirty-nine leases at issue in this
litigation and the associated development, either conventional or unconventional,
that could result in these areas . . . .” Id. at 274. He stated that he intends to
return to these areas “as often as possible, but certainly within the next year.” Id.
at 264.
The district court determined these affidavits and the Amended Complaint
failed to demonstrate an injury in fact because they did not identify specific visits
to each of the thirty-nine leases at issue. The court also concluded the affidavits
were insufficient because SUWA’s members only occasionally visited the
relevant areas and failed to provide sufficiently imminent plans to return. See
App. at 229 (“Because Members’ past visitations do nothing more than create
isolated visits to the areas in question, more specificity is required in their future
planning to remove the injury from the ‘speculative’ and place it within the realm
of ‘concrete’ and ‘imminent.’ Under these facts, simply declaring their intent to
return within the course of the year does not suffice.”). In its view, any
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imminence of injury was further undermined by the duration of litigation. The
court explained that even though members had averred plans to return certainly
within the year, more than a year had passed since the affidavits were signed and
“the stated timetable for Members to make their return trips has lapsed. . . .
[T]here is now no evidence that they ever intend to return.” Id. at 230.
In urging us to affirm the district court, Kirkwood and the government first
contend SUWA’s injuries are insufficiently concrete and particularized, asserting
that “Mr. Bloxham’s multiple declarations do not provide the requisite
demonstration of use of the land’s [sic] covered by Kirkwood’s CHL Applications
to establish an injury-in-fact.” Kirkwood Br. at 38. Relying primarily on
Defenders of Wildlife, 504 U.S. at 565-66, they argue Mr. Bloxham’s declarations
lack the specificity necessary to show a particularized interest in the land.
1. Concrete and Particularized Injury
“The purpose of the injury-in-fact requirement of Article III is to ensure
only those having a ‘direct stake in the outcome,’ and not those having abstract
concerns, may have access to the courts.” Comm. to Save the Rio Hondo v.
Lucero, 102 F.3d 445, 451 (10th Cir. 1996) (quoting Valley Forge Christian
College v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 473
(1982)). Where, as here, “the plaintiff is not himself the object of the government
action or inaction he challenges, standing is not precluded, but it is ordinarily
substantially more difficult to establish.” Defenders of Wildlife, 504 U.S. at 562
-21-
(internal quotation marks omitted). As a general rule, however, “environmental
plaintiffs adequately allege injury in fact when they aver that they use the
affected area and are persons ‘for whom the aesthetic and recreational values of
the area will be lessened’ by the challenged activity.” Friends of the Earth, 528
U.S. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). “While
generalized harm to the forest or the environment will not alone support standing,
if that harm in fact affects the recreational or even the mere esthetic interests of
the plaintiff, that will suffice.” Summers, 555 U.S. at 494.
The district court misapplied the law when it rejected SUWA’s standing on
the basis that the affidavits failed to show its members have visited each of the
leases at issue. Neither our court nor the Supreme Court has ever required an
environmental plaintiff to show it has traversed each bit of land that will be
affected by a challenged agency action. Although the Supreme Court has stated
that “a plaintiff claiming injury from environmental damage must use the area
affected by the challenged activity and not an area roughly ‘in the vicinity’ of it,”
Defenders of Wildlife, 504 U.S. at 565-66 (citing Nat’l Wildlife Fed’n, 497 U.S. at
887-889), that statement must be read in context. In National Wildlife
Federation, the Court explained in the summary judgment context that the heftier
requirements of Rule 56 were “assuredly not satisfied by averments which state
only that one of respondent’s members uses unspecified portions of an immense
tract of territory, on some portions of which mining activity has occurred or
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probably will occur by virtue of the governmental action.” 497 U.S. at 889(emphasis added). Similarly, in Defenders of Wildlife, 504 U.S. at 566, the Court
rejected the notion that plaintiffs could demonstrate an injury while only “us[ing]
portions of an ecosystem not perceptibly affected by the unlawful action in
question.” Neither of these cases is remotely similar to the case at bar.
Indeed, Mr. Bloxham’s declarations go beyond the general factual
allegations needed at the pleading stage. As his affidavits described in detail, he
has traveled extensively through these STSAs, has traversed through or within
view of the parcels of land where oil and gas development will occur, and plans
to return as often as possible, but certainly within a year. He specified areas
which he has visited, averred that these specific areas will be affected by oil and
gas drilling, and stated his interests will be harmed by such activity. This is
sufficient. A plaintiff who has repeatedly visited a particular site, has imminent
plans to do so again, and whose interests are harmed by a defendant’s conduct has
suffered injury in fact that is concrete and particularized. See Summers, 555 U.S.
at 494; see also S. Utah Wilderness Alliance, 620 F.3d at 1234 (“‘In an
environmental case . . . a plaintiff need only show that he used the affected area,
and that he is an individual for whom the aesthetic and recreational values of the
area are lessened by the defendant’s activity.’” (quoting Piney Run Preservation
Ass’n v. Cnty. Comm’rs, 268 F.3d 255, 263 (4th Cir. 2001) (alteration in
original)).
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Recent precedent from our court demonstrates that Mr. Bloxham’s
declarations are more than sufficient to establish SUWA’s injury at the pleading
stage. In Southern Utah Wilderness Alliance, 620 F.3d at 1234, for example, the
“amended complaint state[d] that its members use the lands affected by these
[mining] permits for various purposes – scientific study, hunting, aesthetic
appreciation, sightseeing, and solitude. They claim that the proposed mining
operations would impair many, if not all, of these uses.” We held there was an
injury in fact and noted this type of injury “has often been used to demonstrate
standing . . . .” Id. Here, SUWA has made similar claims and has adequately
alleged a concrete, particularized injury.
The reality that this litigation has taken several years does not render Mr.
Bloxham’s intentions to return “certainly within the next year,” App. at 264,
inadequate for standing. As we explained supra, “standing is determined at the
time the action is brought.” Mink, 482 F.3d at 1253. Any concern that SUWA
subsequently lost its interest in this litigation is relevant to mootness, not
standing. See Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22
(1997) (“Mootness has been described as the doctrine of standing set in a time
frame: The requisite personal interest that must exist at the commencement of the
litigation (standing) must continue throughout its existence (mootness).” (internal
quotation marks omitted)). Accordingly, the district court erred when it held
SUWA had failed to show a concrete injury sufficient to support standing.
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2. Imminence of Injury
Kirkwood and the government also argue that SUWA’s injuries are not
actual or imminent because Kirkwood’s leases are considered by the BLM to be
suspended and Kirkwood currently does not hold drilling permits to conduct oil
and gas development on its leaseholds. Kirkwood contends in addition that
SUWA cannot show imminent injury because “BLM’s 2006 and 2007 Decisions
did not approve any of Kirkwood’s CHL applications, or issue any oil and gas
leases or suspend any existing oil and gas leases. There has been no ‘irretrievable
commitment of resources’ because BLM has not issued the combined hydrocarbon
leases to Kirkwood.” Kirkwood Br. at 31 (citing New Mexico ex rel. Richardson
v. Bureau of Land Mgmt., 565 F.3d 683, 718 (10th Cir. 2009)).
“Although ‘imminence’ is concededly a somewhat elastic concept,” its
purpose in the standing formulation “is to ensure that the alleged injury is not too
speculative for Article III purposes – that the injury is ‘certainly impending.’”
Defenders of Wildlife, 504 U.S. at 564 n.2. The doctrines of standing and
ripeness substantially overlap in many cases, Morgan v. McCotter, 365 F.3d at
887. Such is the case here, where the question of whether SUWA faces an
imminent injury involves similar concerns as whether SUWA’s suit is ripe for
adjudication. “The standing question thus bears close affinity to questions of
ripeness – whether the harm asserted had matured sufficiently to warrant judicial
intervention.” Warth v. Selden, 422 U.S. at 499 n.10.
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But there are also important differences between the two doctrines, as our
sister circuit has explained,
When determining standing, a court asks whether these persons are
the proper parties to bring the suit, thus focusing on the qualitative
sufficiency of the injury and whether the complainant has personally
suffered the harm. See Erwin Chemerinsky, Federal Jurisdiction §
2.4.1 (1989). When determining ripeness, a court asks whether this
is the correct time for the complainant to bring the action. See id.
Wilderness Soc. v. Alcock, 83 F.3d 386, 390 (11th Cir. 1996); see also 13B
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice
and Procedure § 3532.1 (3d ed. 2008) (“As compared to standing, ripeness
assumes that an asserted injury is sufficient to support standing, but asks whether
the injury is too contingent or remote to support present adjudication.”).
The question here is not whether SUWA is a proper party to challenge
BLM’s decision, but when it can do so. Given the overlap between the doctrines
of standing and ripeness, and given that SUWA is a proper party to bring this
action if this is the correct time to do so, we think this case is more appropriately
decided under the ripeness doctrine, which has been “characterized as standing on
a timeline.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138
(9th Cir. 2000) (en banc); see also Wright & Miller, supra, § 3532.1 (“Both
ripeness and mootness, moreover, could be addressed as nothing but the time
dimensions of standing.”). Accordingly, rather than further analyzing the
standing issue, we turn to the question of ripeness.
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III.
The district court did not address ripeness, although the issue was raised
and briefed below. The ripeness doctrine “is drawn both from Article III
limitations on judicial power and from prudential reasons for refusing to exercise
jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 58 n.18 (1993).
Accordingly, we may decide the issue even when it was not reached by the
district court. See Utah v. U.S. Dep’t of the Interior, 210 F.3d 1193, 1196 n.1
(10th Cir. 2000).
The doctrine of ripeness prevents courts “from entangling themselves in
abstract disagreements over administrative policies,” while also “protect[ing] the
agencies from judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the challenging parties.”
Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99 (1977); see also Nat’l Park
Hospitality Ass’n v. U.S. Dep’t of Interior, 538 U.S. 803, 807-08 (2003). “In
evaluating ripeness the central focus is on whether the case involves uncertain or
contingent future events that may not occur as anticipated, or indeed may not
occur at all.” Initiative & Referendum Inst., 450 F.3d at 1097 (internal quotation
marks omitted).
In deciding whether an agency’s decision is ripe for judicial review, we
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examine “both the ‘fitness of the issues for judicial decision’ and the ‘hardship to
the parties of withholding court consideration.’” Ohio Forestry Ass’n, Inc. v.
Sierra Club, 523 U.S. 726, 733 (1998) (quoting Abbott Labs., 387 U.S. at 149);
see also Tarrant Reg’l Water Dist. v. Herrmann, 656 F.3d 1222, 1249 (10th Cir.
2011). In doing so, we may consider:
(1) whether the issues in the case are purely legal; (2) whether the
agency action involved is “final agency action” within the meaning
of the Administrative Procedure Act, 5 U.S.C. § 704; (3) whether the
action has or will have a direct and immediate impact upon the
plaintiff and (4) whether the resolution of the issues will promote
effective enforcement and administration by the agency.
Coal. for Sustainable Res., Inc. v. U.S. Forest Serv., 259 F.3d 1244, 1250 (10th
Cir. 2001) (citation omitted); see also Mobil Exploration & Producing U.S., Inc.,
180 F.3d 1192, 1197 (10th Cir. 1999). 10
The parties focus on whether the Challenged Decisions constitute final
agency action because if they do not, they are clearly not fit for judicial review.
Section 704 of the APA provides that an agency action is “subject to judicial
review” when it is either: (1) “made reviewable by statute,” or (2) a “final agency
action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704.
Agency action is final if it marks “the consummation of the agency’s
decisionmaking process” and is “one by which rights or obligations have been
10
We sometimes articulate our ripeness review as proceeding under a three-
factor test, see, e.g., Sierra Club v. U.S. Dep’t of Energy, 287 F.3d 1256, 1262-63
(10th Cir. 2002). These two tests are essentially the same. Id. at 1263 n.3; Coal.
for Sustainable Res., Inc., 259 F.3d at 1250 n.11.
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determined, or from which legal consequences will flow.” Bennett, 520 U.S. at
178 (internal quotation marks omitted).
Here, the Challenged Decisions did conclusively determine that Kirkwood
continues to own unexpired leases that will ultimately give it some right to oil
and gas production on the land, whether under Combined Hydrocarbon Leases if
the applications are granted, or during the remaining terms of the underlying oil
and gas leases if the combined leases are denied and the lease terms now deemed
suspended are thereby revived. Whether Kirkwood retains any right in the
underlying leases is the very issue SUWA has raised on appeal. On the other
hand, the Challenged Decisions were merely part of a larger process for
determining whether to accept Kirkwood’s CHL conversion applications, a
process that has not been completed. IBLA remanded the cases to BLM, see
Kirkwood, 175 IBLA at 319, and Kirkwood’s CHL applications remain pending.
It is true that in a typical mineral leasing case, environmental plaintiffs do
not have to wait until drilling permits have been issued before they may bring
suit. Federal courts have repeatedly considered the act of issuing a lease to be
final agency action which may be challenged in court. 11 See, e.g., New Mexico,
11
The Department of the Interior manages the federal oil and gas resources
through a three-stage decisionmaking process. Pennaco Energy, Inc. v. U.S.
Dep’t of Interior, 377 F.3d 1147, 1151 (10th Cir. 2004). First, BLM “develops
land use plans – often referred to as resource management plans (RMPs).” Id.;
New Mexico, 565 F.3d at 716 (same). “Next, BLM issues a lease for the use of
particular land.” New Mexico, 565 F.3d at 716. Third, “[t]he lessee may then
apply for a permit to drill, and BLM will decide whether to grant it.” Id.-29-
565 F.3d 683; Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988); Sierra Club v.
Peterson, 717 F.2d 1409 (D.C. Cir. 1983). In part this is so because the issuance
of the lease represents the irreversible and irretrievable commitment of public
resources for private use. Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d
43, 50 (D.C. Cir. 1999). Once the lease is issued, the lessee “cannot be prohibited
from surface use of the leased parcel.” New Mexico, 565 F.3d at 718 (citing 43
C.F.R. § 3101.1-2). Indeed, the terms of oil and gas leases issued on public lands
give a lessee legal incentives to begin development with haste because generally a
lessee must diligently develop the leasehold or else the lease will expire at the
end of its primary term. See 30 U.S.C. § 226(e) (“Each such lease shall continue
so long after its primary term as oil or gas is produced in paying quantities.”).
Moreover, where a lessee has purchased a lease, it has usually taken some
concrete step toward disturbing the ground of the leasehold. See New Mexico,
565 F.3d at 718 (noting the record reveals the lessee’s “concrete plans” to build
wells); cf. Utah v. U.S. Dep’t of Interior, 535 F.3d 1184, 1198 (10th Cir. 2008)
(observing we have found hardship where “the defendant had taken some concrete
action that threatened to impair – or had already impaired – the plaintiffs’
interests” (citing Sierra Club, 287 F.3d at 1264-65)).
But these cases are distinguishable from the circumstances here, which are
far from the usual case involving issuance of a lease. What SUWA characterizes
as the “reissuance” of the leases, when BLM deemed them to be in suspension
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rather than terminated, were not the result of recent successful bids by Kirkwood.
They were instead interim decisions of the agency as part of the process of
deciding whether to grant Kirkwood’s application for CHL leases. Accordingly,
we conclude there has not been a consummation of the agency’s decisionmaking
process sufficient to support litigation of the issue SUWA seeks to raise.
Nor have the interim decisions had any immediate impact on SUWA.
Kirkwood has taken no concrete action in decades to develop oil and gas on the
leases other than to apply to convert them to CHLs. Kirkwood also has
consistently disclaimed any right to engage in operations on the leases while its
CHL applications are under review. In Kirkwood’s view, its leases are subject to
a suspension of operations, not just a suspension of the length of their respective
terms, and that suspension of operations, it says, prohibits it from entering upon,
exploring, or otherwise impacting the leaseholds while its CHL applications are
pending.
In addition, because Kirkwood’s leases have been deemed by the BLM to
be under some type of suspension and their terms will not expire during the
pendency of the CHL applications, 43 C.F.R. § 3103.4-4(b), Kirkwood lacks an
incentive to attempt oil and gas development on the leases in the interim. There
is no indication that Kirkwood intends to seek a permit to drill on the suspended
leases, even if it has the legal right to do so as SUWA and the government argue,
supra at 9-10. Kirkwood’s CHL conversion applications have already been
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pending for nearly thirty years. Nothing in the record suggests that during these
decades Kirkwood ever sought the required drilling permits, and it denies having
the current right to do so. Given Kirkwood’s representations to us and to the
district court that it cannot utilize the leases while its CHL applications are
pending, it appears unlikely that Kirkwood will seek to engage in any oil and gas
development on the leaseholds until its CHL applications are resolved. 12 Thus,
the Challenged Decisions have had no immediate impact on the interests SUWA
seeks to protect.
Moreover, we are not persuaded that SUWA will be harmed by delayed
review. Any harm to SUWA’s members’ enjoyment of the lands at issue “rests
upon contingent future events that may not occur as anticipated, or indeed may
not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (quotations
omitted). Until Kirkwood receives either drilling permits on the suspended leases
or decisions on the CHL applications, no oil and gas development will occur. In
the meantime, SUWA’s members can continue their enjoyment of the Circle
Cliffs and Tar Sand Triangle STSAs without disruption by Kirkwood, and
SUWA’s interests in the wilderness of Southern Utah will remain uninjured by
the status quo. Both Kirkwood and the government concede that if and when
Kirkwood ever gains the right to engage in development on the leaseholds,
12
Of course, if Kirkwood were to abandon its current position and seek
permits to begin drilling operations, SUWA could challenge the issuance of such
permits.
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SUWA may seek review of its claim that the Challenged Decisions improperly
deemed the leases suspended, along with any other issues that may arise in the
remaining course of the agency proceedings.
We would also “benefit from further factual development of the issues
presented.” Utah, 210 F.3d at 1197. Although the issues here are predominantly
legal questions, the validity of SUWA’s claims will be best adjudicated once the
facts have been further developed and it becomes clear what type of oil and gas
development Kirkwood will ultimately be allowed to engage in, if any. We
should not resolve the issues raised by SUWA “unless and until it is determined
what rights” Kirkwood has to engage in mineral extraction on the leaseholds.
Tarrant Reg’l Water Dist., 656 F.3d at 1250; see also Skull Valley Band of
Goshute Indians v. Nielson, 376 F.3d 1223, 1237 (10th Cir. 2004) (“Fitness for
judicial resolution may depend upon . . . whether consideration of the issue would
benefit from a more concrete setting . . . .” (internal quotation marks omitted)).
There is simply too much uncertainty as to when and what type of drilling,
if any, will occur on the thirty-nine contested leases. SUWA “will have ample
opportunity later to bring its legal challenge at a time when harm is more
imminent and more certain,” Ohio Forestry Ass’n, 523 U.S. at 734, and it will
suffer no hardship from this delayed review. Accordingly, we conclude this suit
is premature.
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IV.
Because SUWA’s claims are not ripe, we REMAND to the district court
with instructions to dismiss this action without prejudice.
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