Ctr for Biological Diversity v. Ken Salazar

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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Nos. 10-60411 et al.

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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Nos. 10-60411 et al.

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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Nos. 10-60411 et al.

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

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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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Nos. 10-60411 et al.

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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Nos. 10-60411 et al.

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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Nos. 10-60411 et al.

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

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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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