D.C. District Court Judge Chastises the Department of the Interior, Ordering It to Deliver a Plan on a BLM Drilling Permit, After a 29-Year Suspension

On July 27, 2015, D.C. District Court Judge Richard J. Leon entered a strongly worded order in Solenex LLC v. Jewell, chastising the defendants, including the Department of the Interior and numerous other federal agencies, for unreasonably delaying action in their review of Solonex LLC’s suspended 1985 drilling permit. Civ. No. 1:13-cv-00993, Doc. No. 52.

The court provided a summary of the “torturous” factual history of the case. Id. at 2. The Bureau of Land Management (“BLM”) issued a lease to the plaintiff’s predecessor-in-interest in 1982, which covered 6,247 acres in Montana, known as Badger-Two Medicine by the Native American Blackfeet Nation. Subsequently, the BLM approved an application to drill (“APD”) a single natural gas exploratory well on January 31, 1985. The BLM then suspended the permit six times, starting October 1, 1985, with the last suspension occurring on July 15, 1998. During this time, “various agencies, including the Forest Service and the BLM [were] performing various reviews under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4331 et seq., the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470-470x-6, and other applicable statutes.” Id.

Despite these reviews, during this time none of the various involved agencies have made any final determination on the suspension. As the court forcefully explained, “[t]hus, since the APD was first approved in 1985, the lease has been suspended for 29 years! No combination of excuses could possibly justify such ineptitude or recalcitrance for such an epic period of time.” Id.

Solonex LLC ultimately filed this action in 2013, in an effort to resolve the extended delay. When deciding the parties’ cross-motions for summary judgment, the court applied an analysis of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, and found the defendant federal agencies’ unreasonable delay in making a final determination on the permit suspension constituted a failure to meet their duty to decide the issues presented to them within a reasonable time. Id. at 3. In turn, the court held it must mandate that the agencies act, in order to satisfy its duty under the APA to compel agencies to cease such unreasonable delays. Id.

Despite the court’s clear disdain for the defendants’ inaction, Judge Leon refrained from directly ordering them to lift the suspension, instead setting a 21-day “schedule for the orderly, expeditious resolution of the decision whether to lift the suspension of plaintiff’s lease.” Id. at 5-6. The defendants will be required to adhere to this schedule, and any modifications will require the court’s approval. Additionally, “the defendants will be required to explain any and all material failures to comply, which may possibly be remedied by a judicial order lifting the current suspension entirely.” Id. at 6.

BakerHostetler LLP’s Shale team will continue to monitor this matter, including the defendants’ compliance with the court’s scheduling order.