OIL AND GAS:

Appeals court won't revisit decision supporting Salazar's cancellation of 77 Utah leases

A federal appeals court will not reopen a legal challenge to Interior Secretary Ken Salazar's 2009 decision to cancel 77 oil and natural gas leases near pristine federal lands in Utah.

The 10th U.S. Circuit Court of Appeals in Denver late yesterday issued a brief, three-page order denying a motion by two oil and gas companies and Uintah and Duchesne counties in Utah that asked the three-judge panel to rehear the appeal of Salazar's decision.

The appeals court last fall upheld Salazar's decision to cancel the leases sold at a December 2008 auction, ruling that a coalition of energy companies and Utah counties did not file its federal lawsuit within 90 days of Salazar's decisions (EnergyWire, Sept. 6, 2012).

The original May 2009 lawsuit was brought against federal officials by three Utah counties -- including Uintah County, a sharp critic of the Obama administration's land-use policies -- and three energy companies that had successfully bid on some of the canceled parcels. They had argued that the lease parcels covering more than 100,000 acres of Bureau of Land Management holdings in the state should be reinstated.

The three-member appeals court panel's decision yesterday likely ends the long legal battle over Salazar's decision to cancel the leases issued by the George W. Bush administration. Though the plaintiffs could still appeal the ruling to the U.S. Supreme Court, some observers and advocates believe that is unlikely.

"This is a real victory for Utah's wild lands," said Robin Cooley, an Earthjustice attorney who represented several conservation groups that intervened in the case. "As Secretary Salazar recognized, the prior administration was in a 'headlong rush' to issue oil and gas leases without concern for the spectacular scenery, pristine air and outstanding recreational opportunities of these lands."

David Garbett, a staff attorney with the Southern Utah Wilderness Alliance (SUWA), echoed Cooley's statement but said there's still work to do.

"The plans and documents that led to the disastrous offering of these lease parcels are still in place; this mistake could be repeated," Garbett said.

Greg Benson, a spokesman for Denver-based QEP Resources Inc., one of the two companies requesting that the appeal be reheard, said the company was not prepared to issue a statement.

The appeals court's September 2012 ruling upheld a late 2010 ruling by U.S. District Court Judge Dee Benson in Salt Lake City that concluded a lawsuit challenging Salazar's actions was filed too late to return the leases to their original owners (Land Letter, Sept. 9, 2010).

Benson, however, ruled that Salazar "exceeded his statutory authority by withdrawing leases" after the competitive lease sale. But the lawsuit could not proceed because of the "strict statute of limitations" of 90 days after the secretary's final decision, according to the ruling.

The three-judge appeals panel decision in September essentially concurred that the appeal needed to have been filed within 90 days of Salazar's Feb. 6, 2009, decision.

The judges wrote that Interior made a final decision on Feb. 6, 2009, in the form of an internal memorandum, "and the companies acknowledged the possibility that the government's position would hold sway," according to the ruling. "Despite this knowledge, the Energy Companies gambled" on their interpretation that the actual date of a final decision was Feb. 12, six days later, when Salazar sent a letter to the plaintiffs informing them of his decision and authorizing their lease payments to be refunded, according to the ruling.

"This gamble did not pay off," the judges wrote.

But Judge Timothy Tymkovich wrote in a dissenting opinion in September that the Feb. 6 memo could not be the final agency action here because the memo did not withdraw the leases but instead anticipated that further steps would be needed to orchestrate the withdrawals.

And Tymkovich criticized previous arguments from Interior that notice of the formal decision had been made two days earlier, on Feb. 4, 2009, during a press conference in which Salazar announced he planned to retroactively withdraw the leases in question.

Salazar has said he made his February 2009 decision to cancel the leases because they were too close to natural treasures such as Canyonlands National Park and Dinosaur National Monument, among others, and that they threatened to foul regional air quality and harm wildlife, rivers and streams and cultural resources.

"The court's decision validates the significance of public input and planning before lease permits are offered for sale," said David Nimkin, Southwest regional director for the National Parks Conservation Association in Salt Lake City. "In particular, planning and providing for the protection of our national parks should be a priority."

Streater writes from Colorado Springs, Colo.