Chance v. Jewell et al

MOTION to Dismiss for Lack of Jurisdiction

N.D. Okla.November 23, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA MERRILL CHANCE, ) ) Petitioner, ) ) vs. ) No. 16-cv-549-JHP-PJC ) S.M.R. JEWELL, et.al., ) ) Federal Respondents. ) ) FEDERAL RESPONDENTS’ MOTION TO DISMISS FOR LACK OF SUBJECT- MATTER JURISDICTION AND MEMORANDUM IN SUPPORT Federal Defendants, S.M.R. Jewell, in her official capacity as Secretary of the United States Department of the Interior (“Interior”); the Bureau of Indian Affairs (“BIA”); and Michael Black, in his official capacity as Director of the BIA (collectively “Federal Respondents”) hereby move, pursuant to Rule 12 of the Federal Rules of Civil Procedure, 10th Circuit Rule 27.211, and Local Civil Rule 7.2, for an order dismissing Plaintiff’s claims against Federal Respondents in the First Amended Complaint, ECF No. 17, for lack of subject matter jurisdiction. This motion is supported by the memorandum of points and authorities below and all arguments that may be presented in reply, at argument, or by leave of Court. 1 “Reviews of agency action in the district court must proceed as appeals. In such circumstances the district court should govern itself by referring to the Federal Rules of Appellate Procedure.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994). Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 1 of 27 i Table of Contents I. STANDARD OF REVIEW ..................................................................................................... 2 II. BACKGROUND ..................................................................................................................... 3 III. ARGUMENT ....................................................................................................................... 5 A. Plaintiff’s claims are barred by the six-year statute of limitations set forth in 28 U.S.C. § 2401(a). ....................................................................................................................................... 5 1. Plaintiff’s challenges to the lease and two APDs are untimely. ....................................... 5 2. The Statute of Limitations is not subject to Equitable Tolling. ....................................... 7 B. Plaintiff fails to establish a waiver of sovereign immunity. .............................................. 11 C. Plaintiff failed to exhaust administrative remedies as required by Interior regulations, and therefore, judicial review is not available under the APA. ....................................................... 14 D. Plaintiff failed to identify any final agency action under the APA with respect his claim regarding all other “unknown” leases and permits approved since January 1, 1970. ............... 16 E. Plaintiff’s claims regarding the two APD’s are moot. ....................................................... 17 IV. CONCLUSION .................................................................................................................. 19 Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 2 of 27 ii Table of Authorities Cases Air Courier Conference of Am. v. American Postal Workers Union, AFL-CIO, 498 U.S. 517 (1991) ........................................................................................................................................ 16 American Pipe Construction Co. v. Utah, 414 U.S. 538 (1974) ................................................... 10 Bowles v. Russell, 551 U.S. 205 (2007) .......................................................................................... 7 Catron Cnty. v. U.S. Fish and Wildlife Serv., 75 F.3d 1429 (10th Cir. 1996) .............................. 16 Chemical Weapons Working Group, Inc., v. U.S. Dep’t of the Army, 111 F.3d 1485 (10th Cir. 1997)............................................................................................................................................ 7 City of Albuquerque v. U.S. Dep’t of Interior, 379 F.3d 901 (10th Cir. 2004) ............................. 11 Coosewoon v. Meridian Oil Co., 25 F.2d 920 (10th Cir. 1994) ............................................. 14, 15 Darby v. Cisneros, 509 U.S. 137 (1993)................................................................................. 13, 15 Davis v. Morton, 469 F.2d 593 (10th Cir. 1972) ............................................................................ 3 Davis v. United States, 343 F.3d 1282 (10th Cir. 2003) ............................................................... 14 Delgado v. Gonzales, 428 F.3d 916 (10th Cir. 2005) ................................................................... 13 Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999) ............................................................ 11 Donelson v. United States, Case No. 4:14-cv-316-JHP-FHM (N.D. Okla. 2014).................... 9, 10 Evans v. United States, No. 09-2096-KHV, 2010 U.S. Dist. LEXIS 13736 (D. Kan. Feb. 17, 2010)............................................................................................................................................ 7 Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018 (10th Cir. 2012) ......................................... 2 Franks v. Nimmo, 683 F.2d 1290 (10th Cir. 1982) ....................................................................... 14 Garcia v. Shanks, 351 F.3d 468 (10th Cir. 2003) ........................................................................... 7 Gilmore v. Weatherford, 694 F.3d 1160 (10th Cir. 2012) ............................................................ 15 Hayes v. Chaparral Energy, LLC et al., 4:14-cv-495-GKF-PJC (N.D. Okla., Mar. 23, 2016) ... 17, 18, 19 Hewitt v. Helms, 482 U.S. 755 (1987) .......................................................................................... 17 Holland v. Florida, 560 U.S. 631 (2010) ........................................................................................ 7 Holt v. United States, 46 F.3d 1000 (10th Cir. 1995) ..................................................................... 2 Impact Energy Res., LLC v. Salazar, 693 F.3d 1239 (10th Cir. 2012) ........................................... 5 Ind v. Colo Dep’t of Corr., 801 F.3d 1209 (10th Cir. 2015) ......................................................... 17 Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963 (10th Cir. 1994) ............. 6 Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 3 of 27 iii Jones v. Bock, 549 U.S. 199 (2007) .............................................................................................. 15 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ........................................... 2, 13 Lane v. Pena, 518 U.S. 187 (1996) ............................................................................................... 11 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ..................................................... 5, 12, 13, 16 McCarthy v. Madigan, 503 U.S. 140 (1992) ................................................................................ 14 McKart v. United States, 395 U.S. 185 (1969) ............................................................................. 14 McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178 (1936). ....................................... 2 Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jacks, 960 F.2d 911 (10th Cir. 1992) ................ 11 Mount Evans v. Madigan, 14 F.3d 1444 (10th Cir. 1994) ............................................................ 16 Nagahi v. Immigration & Naturalization Serv., 219 F.3d 1166 (10th Cir. 2000). ......................... 5 New Mexico v. Regan, 745 F.2d 1318 (10th Cir. 1984)................................................................ 12 Phillips Petroleum Co. v. Lujan, 4 F.3d 858 (10th Cir. 1993)........................................................ 6 Ramming v. United States, 281 F.3d 158 (5th Cir. 2001). .............................................................. 5 Richardson v. Morris, 409 U.S. 464 (1973) ................................................................................. 12 Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F. 3d 1096 (10th Cir. 2010)..... 17, 18 Ruiz v. McDonnell, 299 F.3d 1173 (10th Cir. 2002)....................................................................... 2 Schell et al. v. OXY USA, Inc., 814 F.3d 1107 (10th Cir. 2016) ............................................. 17, 18 Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225 (10th Cir. 2005) ............................................. 13 Spannus v. U.S. Dep’t of Justice, 824 F.2d 52 (D.C. Cir. 1987) .................................................... 5 St. Regis Paper Co. v. Marshall, 591 F.2d 612 (10th Cir. 1979).................................................. 14 Thomas v. Sec’y of the Army, No. 96-6182, 1997 U.S. App. LEXIS 68 (10th Cir. Jan. 2, 1997) .. 8 Unified Sch. Dist. No. 259 v. Disability Rights Ctr. of Kan., 491 F.3d 1143 (10th Cir. 2007) .... 17 United States v. Clymore, 245 F.3d 1195 (10th Cir. 2001) ........................................................ 7, 8 United States v. Murdoch Mach. & Eng’g Co. of Utah, 81 F.3d 922 (10th Cir. 1996) ................ 11 United States v. Nordic Vill., Inc., 503 U.S. 30 (1992) ................................................................. 11 United States v. Sherwood, 312 U.S. 584 (1941).......................................................................... 12 United States v. Testan, 424 U.S. 392 (1976) ............................................................................... 11 United Tribe of Shawnee Indians v. United States, 253 F.3d 543 (10th Cir. 2001) ............... 11, 14 Urabazo v. United States, No. 91-6028, 1991 U.S. App. LEXIS 26074 (10th Cir. 1991) ......... 7, 8 Utah Envtl. Cong. v. Russell, 518 F.3d 817 (10th Cir. 2008) ....................................................... 12 Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 4 of 27 iv Utah v. Babbitt, 137 F.3d 1193 (10th Cir. 1998) .......................................................................... 16 Ute Distrib. Corp. v. Sec’y of Interior, 584 F.3d 1275 (10th Cir. 2009), cert. denied, 560 U.S. 905 (2010) ................................................................................................................................... 5 White Mountain Apache Tribe v. Hodel, 840 F.2d 675 (9th Cir. 1988) ................................. 13, 14 Wild Horse Observers Ass’n, Inc. v. Jewell, 550 F. Appx. 638 (10th Cir. 2012) ........................... 5 Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207 (10th Cir. 2005)............................................... 17 Wyoming v. United States, 279 F.3d 1214 (10th Cir. 2002) ......................................................... 12 Statutes 28 U.S.C. § 1331 ........................................................................................................................... 11 28 U.S.C. § 1346 ........................................................................................................................... 12 28 U.S.C. § 2201 ........................................................................................................................... 11 28 U.S.C. § 2202 ........................................................................................................................... 11 28 U.S.C. § 2401(a) ....................................................................................................... i, 1, 5, 7, 10 Act of June 28, 1906, Pub. L. No. 59-321, § 3, 34 Stat. 539 .......................................................... 3 Administrative Procedure Act, 5 U.S.C. § 551, et seq........................................................... passim National Environmental Policy Act of 1969, 42 U.S.C. § 4321, et seq. ................................ passim Other Authorities 209 DM 8.1(A)................................................................................................................................ 3 Rules Fed. R. Civ. P. 12(h)(3)................................................................................................................... 2 Fed. R. Civ. P. 23 .......................................................................................................................... 10 Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 5 of 27 v Regulations 25 C.F.R § 226.4 ............................................................................................................................. 3 25 C.F.R. § 226.18 ...................................................................................................................... 4, 6 25 C.F.R. § 226.19 ...................................................................................................................... 3, 6 25 C.F.R. § 226.2 ............................................................................................................................ 3 25 C.F.R. Part 183........................................................................................................................... 3 25 C.F.R. Part 2............................................................................................................................. 15 43 C.F.R. Part 4............................................................................................................................. 15 Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 6 of 27 1 MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff filed suit under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq., challenging the BIA’s approval of a lease assignment and two drilling permits on the subsurface mineral estate underlying Plaintiff’s lands. Plaintiff also challenges the approval of all other “unknown” leases, drilling permits, and workover permits of the subsurface mineral estate underlying his lands. Specifically, Plaintiff claims that the BIA failed to comply with the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321, et seq., in its approval of the lease and permits. As a result, Plaintiff seeks declaratory judgments invalidating the leases and permits, vacating the leases and permits until the BIA complies with the requirements of NEPA, and requiring the BIA to shut down oil and gas operations on the portion of the subsurface mineral estate underlying Plaintiff’s lands until it has required the third parties acting under the invalid approvals to remediate alleged environmental damages on his property. Plaintiff’s claims fail because the Court lacks subject matter jurisdiction. First, Plaintiff’s claims are barred by the applicable six-year statute of limitations set forth in 28 U.S.C. § 2401(a). Second, Plaintiff fails to establish a waiver of sovereign immunity sufficient to vest this Court with jurisdiction. Third, Plaintiff failed to exhaust his administrative remedies and therefore, judicial review is not available pursuant to the APA. Fourth, Plaintiff fails to identify any final agency action under the APA with respect to his claim regarding all other “unknown” leases and permits approved since January 1, 1970. Fifth, Plaintiff’s claims regarding the two drilling permits are moot. Accordingly, because the Court lacks subject matter jurisdiction over Plaintiff’s claims, this case should be dismissed under Fed. R. Civ. P. 12(b)(1). Federal Respondents take no position with respect to the Court’s jurisdiction over Plaintiff’s claims against Defendant Great Southwestern Exploration, Inc. (“GSE”). Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 7 of 27 2 I. STANDARD OF REVIEW “Federal courts are courts of limited jurisdiction . . . , possessing only that power [is] authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). When considering a motion under Fed. R. Civ. P. 12(b)(1), the burden of establishing the court’s subject-matter jurisdiction resides with the party seeking to invoke it, and that party has the burden of establishing jurisdiction by a preponderance of the evidence. McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936). Federal subject-matter jurisdiction “cannot be consented to or waived, and its presence must be established in every cause under review in the federal courts.” Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1022 (10th Cir. 2012). If the Court, at any time, determines that it lacks subject-matter jurisdiction, the case should be dismissed. Fed. R. Civ. P. 12(h)(3). Federal Respondents’ motion to dismiss for lack of subject-matter jurisdiction can take one of two forms: “(1) a facial attack on the sufficiency of the complaint’s allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). This motion presents a facial attack on the sufficiency of the First Amended Complaint’s allegations as to the Court’s subject-matter jurisdiction. As such, the factual allegations advanced in the First Amended Complaint are assumed to be true for purposes of this motion. Id. This motion also presents a challenge to the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, the Court may not presume the truthfulness of the complaint’s factual allegations. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). A court has wide discretion to allow other documents to resolve disputed jurisdictional facts under 12(b)(1). Id. In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion. Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 8 of 27 3 II. BACKGROUND Plaintiff is the owner of surface lands in Osage County, Oklahoma. Am. Compl. ¶ 2. The subsurface mineral estate in Osage County (“Osage Mineral Estate”) is held in trust by the United States for the benefit of the Osage Nation. Act of June 28, 1906, Pub. L. No. 59-321, § 3, 34 Stat. 539, 543-44, as amended (“1906 Act”); Am. Compl. ¶ 12. Under the 1906 Act, the Osage Nation is authorized to lease the Osage Mineral Estate for oil and gas exploration and development “with the approval of the Secretary of the Interior, and under such rules and regulations as he may prescribe.” 1906 Act § 3. The Secretary has delegated this authority to the Superintendent of the Osage Agency. See 25 C.F.R §§ 226.4, 226.5(b); see also 209 DM 8.1(A). The regulations governing leasing of the Osage Mineral Estate for oil and gas mining are set forth in 25 C.F.R. Part 226.2 BIA has enacted regulations governing oil and gas leasing on the Osage Mineral Estate. “No operations shall be permitted upon any tract of land until a lease covering such tract is approved by the Superintendent.” 25 C.F.R. § 226.16(a). Each oil lease, gas lease, or gas and oil lease and the lease’s related operations that are governed by the regulations in 25 C.F.R. Part 226, and must be assessed for its environmental impact prior to its approval by the Superintendent. 25 C.F.R. § 226.2(c); Davis v. Morton, 469 F.2d 593, 596-97 (10th Cir. 1972). Upon receipt of an approved lease, lessees have the right to use so much of the surface of the land within the Osage Mineral Estate as may be reasonable for operations and marketing. 25 C.F.R. § 226.19(a). However, except for the surveying and staking of a well, no operations of any kind shall commence until the lessee 2 From 1957 until 1982, the regulations governing the leasing of the Osage Mineral Estate were codified at 25 C.F.R. Part 183. In 1982, the regulations were re-designated as 25 C.F.R. Part 226. See 47 Fed. Reg. 13327 (Mar. 30, 1982). Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 9 of 27 4 meets with the surface owner to discuss lease access and the settlement of surface damages. 25 C.F.R. § 226.18. Prior to commencing drilling operations, a lessee must submit an application for a permit to drill (“APD”) and obtain the Superintendent’s approval thereof, 25 C.F.R. § 226.16 (b), and pay the surface owner a commencement fee, 25 C.F.R. § 226.18 (b). Plaintiff filed his Complaint on August 19, 2016, challenging the Osage Agency’s compliance with NEPA in its approval of a lease assignment and two APDs.3 See Compl. ¶¶ 45-60. Plaintiff also challenges the Osage Agency’s compliance with NEPA in its approval of any other “unknown” leases, APDs, or workover permits on the Osage Mineral Estate underlying Plaintiff’s lands since January 1, 1970.4 Am. Compl. ¶¶ 60, 95. The subject oil lease, Contract No. 14-20-406-1354 (“Chance Lease”), was entered into by the Osage Tribe and Eason Oil Company (“Eason”) on April 23, 1963. Am. Compl. ¶ 45; ECF No. 17-3. On February 25, 1991, Eason assigned the Chance Lease to Buck Creek Associates, who then assigned the Chance Lease to GSE. Am. Compl. ¶ 51; ECF No. 17-3. BIA approved the lease assignment on April 23, 1991. Id. The following tract owned by the Plaintiff, in whole or in part, is covered by the Chance Lease: (1) SE/4 of Section 1-25N-3E. On March 8, 1991, BIA approved an APD for GSE for Well No. 3 on the Chance Lease. Am. Compl. ¶ 48. GSE began drilling Well No. 3 on December 24, 1990, and finished drilling on January 8, 1991. Id. at ¶ 50; ECF No. 17-1. On August 9, 1991, the BIA approved an APD for GSE for Well No. 4 on the Chance Lease. Am. Compl. ¶ 54; 3 Plaintiff filed his First Amended Complaint on October 26, 2016. ECF No. 17. 4 Congress enacted NEPA on January 1, 1970. 42 U.S.C. § 4332(2)(C). Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 10 of 27 5 ECF No. 17-4. GSE began drilling Well No. 4 on June 20,, 1991, and finished drilling on July 1, 1991. Id. III. ARGUMENT A. Plaintiff’s claims are barred by the six-year statute of limitations set forth in 28 U.S.C. § 2401(a). 1. Plaintiff’s challenges to the lease and two APDs are untimely. “Limitations periods in statutes waiving sovereign immunity are jurisdictional, and a court exercising its equitable authority may not expand its jurisdiction beyond the limits established by Congress.” Ramming v. United States, 281 F.3d 158, 165 (5th Cir. 2001). “[E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” 28 U.S.C. § 2401(a). Claims brought pursuant to the APA, such as Plaintiff’s claims in the instant case, are subject to the six-year statute of limitations period set forth in 28 U.S.C. § 2401(a). Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1245-46 (10th Cir. 2012); Nagahi v. Immigration & Naturalization Serv., 219 F.3d 1166, 1171 (10th Cir. 2000). “Unlike an ordinary statute of limitations, [28 U.S.C.] § 2401(a) is a jurisdictional condition attached to the government’s waiver of sovereign immunity. . . .” Spannus v. U.S. Dep’t of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987); see also Ute Distrib. Corp. v. Sec’y of Interior, 584 F.3d 1275, 1282 (10th Cir. 2009), cert. denied, 560 U.S. 905 (2010) (suggesting that section 2401(a) is jurisdictional). Determination of the accrual date of an action is critical for purposes of applying 28 U.S.C. § 2401(a). Id. “A claim against the United States first accrues on the date when all events have occurred which fix the liability of the Government and entitle the claimant to institute an action.” Wild Horse Observers Ass’n, Inc. v. Jewell, 550 F. Appx. 638, 641 (10th Cir. 2012) (citing Ute Distrib. Corp., 584 F.3d at 1282); see also Phillips Petroleum Co. v. Lujan, 4 F.3d 858, 861 Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 11 of 27 6 (10th Cir. 1993). A plaintiff need not know the full extent of his injuries before the statute of limitations begins to run. Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir. 1994). “A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence.” Id. Plaintiff filed the present case challenging the Superintendent’s approval of the Chance Lease assignment and two APDs on August 19, 2016. The oil lease assignment was approved on April 23, 1991. ECF No. 17-3. The APD for Well No. 3 was approved on March 8, 1991. ECF No. 17-1. The APD for Well No. 4 was approved on August 9, 1991. ECF No. 17-4. The subject lease assignment and APDs have been available, upon request, at the Osage Agency since the dates they were approved. Further, prior to commencement of drilling operations on any lease, the lessee is required to meet with the surface owner to discuss well location, routes of ingress/egress, and the procedure for settlement of surface damages. 25 C.F.R. § 226.18. GSE has submitted a sworn statement that it negotiated commencement payments and damages with the surface owners at the time, Plaintiff’s parents, and that its presence on the Chance Lease was open and notorious. ECF No. 21 at 6-9. Lessees are also required to pay a commencement fee to the surface owner for each well, prior to the well being drilled. 25 C.F.R. § 226.19(b). Plaintiff, through reasonable diligence, could have learned of the existence of the subject lease and APDs at any time following their submission by the lessee simply by contacting the Osage Agency. As noted above, Plaintiff, through his predecessor in interest, had actual notice that the Osage Agency had approved a lease and drilling permits affecting the property as evidenced by the interaction between GSE and the predecessors and the acceptance and deposit of commencement fees in relation thereto. See ECF No. 17-6 (APD for Well No. 5 on Chance Lease). Accordingly, any suit under the APA relating to the approval and issuance of these Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 12 of 27 7 documents is barred by the statute of limitations. See, e.g., Chemical Weapons Working Group, Inc., v. U.S. Dep’t of the Army, 111 F.3d 1485, 1494 (10th Cir. 1997). 2. The Statute of Limitations is not subject to Equitable Tolling. Plaintiff contends that the 28 U.S.C. § 2401(a) limitations period should be equitably tolled, arguing that Federal Respondents failed to provide Plaintiff, or the public, with notice that they approved the subject lease and permits. Am. Compl. ¶¶ 69, 79, 89, 98. Courts however, do not have the authority “to create equitable exceptions to jurisdictional requirements.” Bowles v. Russell, 551 U.S. 205, 214 (2007). The Tenth Circuit has held that 28 U.S.C. § 2401(a) is a “jurisdictional condition attached to the government’s waiver of sovereign immunity, and as such must be strictly construed.” Urabazo v. United States, No. 91-6028, 1991 U.S. App. LEXIS 26074, at *3 (10th Cir. 1991); see Evans v. United States, No. 09-2096-KHV, 2010 U.S. Dist. LEXIS 13736, at *9 (D. Kan. Feb. 17, 2010) (Section 2401 is “more absolute and rigid than other statutes of limitation”). Accordingly, Plaintiff’s assertion that the six-year statute of limitations set forth in 28 U.S.C. § 2401(a) should be tolled is unavailing. Even if this Court were to assume that equitable doctrines could toll the running of 28 U.S.C. § 2401(a), which they cannot, tolling is not appropriate in this case. Equitable tolling is extended sparingly and limited to “rare and exceptional circumstances.” Garcia v. Shanks, 351 F.3d 468, 473 n.2 (10th Cir. 2003). A plaintiff is entitled to equitable tolling only if he shows that he has diligently pursued his rights by filing a defective pleading during the statutory period, or where he has been induced or tricked by the defendant’s conduct into allowing the filing deadline to pass. United States v. Clymore, 245 F.3d 1195, 1199 (10th Cir. 2001) (citation omitted); see also Holland v. Florida, 560 U.S. 631, 649 (2010). Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 13 of 27 8 The Tenth Circuit “has applied equitable tolling when the defendant’s conduct rises to the level of active deception; where a plaintiff has been lulled into inaction by a defendant, and ‘likewise, if a plaintiff is actively misled or has in some extraordinary way been prevented from asserting his or her rights.’” Clymore, 245 F.3d at 1199 (alterations and citations omitted). However, equitable tolling “is not available to a tardy plaintiff who, notwithstanding the alleged concealment, had actual [] or constructive knowledge of the facts constituting his claim for relief.” Thomas v. Sec’y of the Army, No. 96-6182, 1997 U.S. App. LEXIS 68, at *3 (10th Cir. Jan. 2, 1997) (unpublished opinion) (citation omitted); see also Urabazo, 1991 U.S. App. LEXIS 26074, at *4. Plaintiff alleges no facts which indicate that he has taken any steps to diligently pursue his rights, nor did he or his predecessors in interest file any pleading during the applicable statutory period. Instead, Plaintiff’s entitlement to equitable tolling relies on his allegations that the BIA concealed from the public its approval of leases and permits without performing site-specific environmental analysis and misled Plaintiff to believe it had complied with NEPA in approving the subject lease and permits by failing to provide him or his predecessors in interest with notice of their approval. However, Plaintiff’s allegations are unsupported, conclusory statements based on faulty reasoning and Plaintiff’s attenuated interpretation of excerpts from work papers of the U.S. Department of the Interior, Office of the Inspector General (“OIG”). Am. Compl. ¶¶ 53-54, 57-59.5 Contrary to Plaintiff’s assertions, none of the statements in the OIG work papers support a claim that the BIA concealed, or attempted to conceal, its actions in approving leases and permits, nor did the OIG make any such finding. 5 The work papers were created by the OIG during its evaluation of the Osage Agency in 2013. In October 2014, the OIG published a report regarding the Osage Agency’s management of the oil and gas program, CR-EV-BIA-0002-2013. Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 14 of 27 9 Plaintiff’s allegation that he was intentionally misled by the BIA is similarly unavailing. Plaintiff cites no authority for the proposition that Defendants are required to provide Plaintiff, or the public, with notice each time that it approves a lease or permit, and no such requirement appears in the regulations in 25 C.F.R. Part 226. Accordingly, such notice cannot serve as the basis for Plaintiff’s claim that he was intentionally misled. Ultimately, Plaintiff’s allegations of concealment are immaterial because Plaintiff and his predecessors in interest had actual knowledge of the facts constituting his claim for relief. The record shows that the Plaintiff and his predecessors in interest knew, or reasonably should have known, of the existence of his causes of action at the time of their accrual or shortly thereafter. Accordingly, since Plaintiff failed to diligently pursue his rights during the statutory period, Plaintiff failed to allege sufficient facts supporting concealment by Defendants, and Plaintiff had actual knowledge of his claims at the time they accrued, therefore, equitable tolling is improper. Plaintiff finally contends that the filing in this Court of Donelson v. United States, Case No. 4:14-cv-316-JHP-FHM (N.D. Okla. 2014), a “class action,” tolls the statute of limitations for his claims in the instant case during the pendency of the Donelson litigation. The Donelson litigation has no import on Plaintiff’s claims in this matter. In Donelson, two Osage County surface owners filed suit on behalf of themselves and all surface owners and lessees in Osage County whose property is subject to an oil and gas mining lease, concession agreement, or drilling permit, alleging that such instruments are “void ab initio” due to BIA’s failure to comply with NEPA. On March 31, 2016, the Court issued an Opinion and Order in Donelson dismissing the claims against the Federal Defendants for lack of subject matter jurisdiction.6 6 On April 28, 2016, Plaintiffs filed a Motion to Alter or Amend Court’s Opinion and Order and Vacate Judgment. Briefing on Plaintiffs’ Motion is complete; however, the Court has not yet issued its ruling. Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 15 of 27 10 In support of the contention that Donelson tolls the statute of limitations set forth in 28 U.S.C. § 2401(a), Plaintiff, cites American Pipe Construction Co. v. Utah, 414 U.S. 538 (1974). However, American Pipe Construction Co. is inapplicable to the facts of this case. American Pipe Construction Co. is an antitrust case in which the Supreme Court held that where class certification was denied solely because of failure to demonstrate the impracticability of joinder, it was appropriate to toll the statute of limitations set forth in the Clayton Act for purported members of the denied class since such tolling was consistent with the legislative intent thereof.7 Despite Plaintiff’s assertion to the contrary, the Donelson case was not a class action. As opposed to the plaintiffs in American Pipe Construction Co., the Donelson plaintiffs never filed a motion for class certification pursuant to Fed. R. Civ. P. 23, and therefore, no such motion was ever denied. This Court confirmed the lack of any such filing in its Opinion and Order issued March 24, 2016, ECF No. 228, denying the Donelson plaintiffs’ Motion for Leave to Conduct Discovery, stating definitively that “[t]here is no motion pending for class certification.” Id. at 1. Accordingly, since the Donelson case was not a class action and the Donelson plaintiffs never filed a motion for class certification, let alone had a motion for class certification denied, Plaintiff’s argument fails. For the foregoing reasons, Plaintiff’s claims are barred by the six-year statute of limitations set forth in 28 U.S.C. § 2401(a) and are not saved by equitable tolling. Accordingly, Plaintiff’s claims should be dismissed. 7 The Supreme Court specifically noted the importance of the basis for denial of class certification to this holding, stating that “in the present case, maintenance of the class action was not denied for failure of the complaint to state a claim on behalf of members of the class, . . . not for lack of standing of the representative, or for reasons of bad faith or frivolity.” Am. Pipe Constr. Co., 414 U.S. at 766 (citation omitted). Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 16 of 27 11 B. Plaintiff fails to establish a waiver of sovereign immunity. The United States, as sovereign, is immune from suit, unless it consents to be sued. United States v. Testan, 424 U.S. 392, 399 (1976); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jacks, 960 F.2d 911, 913 (10th Cir. 1992) (same). “Thus, if the [United States] has not consented to suit, the courts have no jurisdiction to either restrain the government from acting or to compel it to act.” United States v. Murdoch Mach. & Eng’g Co. of Utah, 81 F.3d 922, 929-30 (10th Cir. 1996). A waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text, and will not be implied. Lane v. Pena, 518 U.S. 187, 192 (1996); Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). Statutory text purporting to waive governmental immunity is strictly construed in favor of the sovereign. United States v. Nordic Vill., Inc., 503 U.S. 30, 34 (1992); see also United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 547 (10th Cir. 2001). While Plaintiff alleges that six different authorities vest this Court with jurisdiction over these claims, none of them are sufficient to establish a waiver of the United States’ sovereign immunity. First, Plaintiff asserts the Court’s jurisdiction pursuant to 28 U.S.C. § 1331. The “defense of sovereign immunity is jurisdictional in nature, depriving courts of subject-matter jurisdiction where applicable.” Normandy Apartments, Ltd. v. United States Dep’t of Hous. & Urban Dev., 554 F.3d 1290, 1295 (10th Cir. 2009). Thus, “[b]ecause general jurisdictional statutes, such as 28 U.S.C. § 1331, do not waive the Government’s sovereign immunity, a party seeking to assert a claim against the government under such statute must also point to a specific waiver of immunity in order to establish jurisdiction.” Id.; see also City of Albuquerque v. U.S. Dep’t of Interior, 379 F.3d 901, 906-07 (10th Cir. 2004). Next, Plaintiff cites the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. However, the Declaratory Judgment Act does not confer jurisdiction on a federal court where none Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 17 of 27 12 otherwise exists. Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir. 2002) (citing New Mexico v. Regan, 745 F.2d 1318, 1323 (10th Cir. 1984)). Accordingly, the Declaratory Judgment Act does not waive sovereign immunity. Normandy Apartments, Ltd., 554 F.3d at 1295; see also Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 961 (10th Cir. 2004) (Sections 2201 and 2202 do not waive sovereign immunity). Plaintiff also improperly cites, 28 U.S.C. § 1346, as providing the Court with jurisdiction. However, in the instant action, Plaintiff seeks declaratory relief. The Supreme Court has held that 28 U.S.C. § 1346 empowers district courts to award damages but not to grant injunctive or declaratory relief. Richardson v. Morris, 409 U.S. 464, 465 (1973); United States v. Sherwood, 312 U.S. 584, 589-91 (1941). Plaintiff also asserts this Court’s jurisdiction pursuant to NEPA. However, NEPA supplies no private right of action. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990). An agency’s compliance with NEPA is reviewed pursuant to the APA. Utah Envtl. Cong. v. Russell, 518 F.3d 817, 823 (10th Cir. 2008). Accordingly, Plaintiff cites only one statute that might provide a waiver of sovereign immunity in the instant case—the APA. In the section of the Complaint titled “Jurisdiction and Venue,” Plaintiff cites Sections 705 and 706 of the APA as providing this Court with jurisdiction. However, neither section establishes a waiver of sovereign immunity. Section 702 of the APA, which Plaintiff does not cite until Paragraph 41 of the Complaint, contains a limited waiver of sovereign immunity for two distinct types of claims against the United States: (1) claims where a person is aggrieved by agency action “within the meaning of a relevant statute;” and (2) claims where a “person suffer[s] a legal wrong because of agency action.” The first type of waiver applies when judicial review is sought pursuant to a statutory cause of action arising separate and apart from the APA. Plaintiff cites no such cause of action. Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 18 of 27 13 The second type of waiver, relevant in the present case, applies when judicial review is sought pursuant only to the general provisions of the APA. “When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under general review provisions of the APA, the ‘agency action’ in question must be ‘final agency action.’” Lujan, 497 U.S. at 882 (citing 5 U.S.C. § 704). “Agency action is not ‘final’ for purposes of § 704 until ‘an aggrieved party has exhausted all administrative remedies expressly prescribed by statute or agency rule.’” Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1233 n.9 (10th Cir. 2005) (quoting Darby v. Cisneros, 509 U.S. 137,146 (1993)). Therefore, pursuant to Section 704 of the APA, “the federal courts may not assert jurisdiction to review agency action until the administrative appeals are complete.” White Mountain Apache Tribe v. Hodel, 840 F.2d 675, 677 (9th Cir. 1988) (citation omitted). As discussed in detail in the following section, Plaintiff has not exhausted administrative remedies as required, and therefore, the challenged agency action is not “final” for the purposes of APA jurisdiction. Since Plaintiff failed to identify any statute other than the APA which provides a cause of action against the United States, and there has been no final agency action, the APA does not waive sovereign immunity for Plaintiff’s claims. The party seeking to invoke the court’s jurisdiction bears the burden of showing that sovereign immunity has been waived. Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005); Kokkonen, 511 U.S. at 377. Plaintiff failed to meet this burden. As set forth above, none of the six authorities Plaintiff cites establish a waiver of sovereign immunity sufficient to vest this Court with jurisdiction, and therefore, the Complaint should be dismissed. Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 19 of 27 14 C. Plaintiff failed to exhaust administrative remedies as required by Interior regulations, and therefore, judicial review is not available under the APA. Under the doctrine of exhaustion of administrative remedies, a party is not “entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” McKart v. United States, 395 U.S. 185, 193 (1969) (citation omitted). Thus, exhaustion of administrative remedies is a necessary jurisdictional prerequisite to judicial review. Davis v. United States, 343 F.3d 1282, 1295-96 (10th Cir. 2003). “A party must exhaust administrative remedies when a statute or agency rule dictates that exhaustion is required.” Coosewoon v. Meridian Oil Co., 25 F.2d 920, 924 (10th Cir. 1994) (citing White Mountain Apache Tribe, 840 F.2d at 677). The exhaustion requirement “recognizes the notion, grounded in deference to Congress’ delegation of authority to coordinate branches of Government, that agencies, not the courts, ought to have primary responsibility for the programs that Congress has charged them to administer.” United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 550 (10th Cir. 2001) (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). As explained by the Tenth Circuit, “the purposes of the doctrine of exhaustion of administrative remedies include avoidance of premature interruption of administrative process, allowing the agency to develop the necessary factual background on which to decide the case, giving the agency a chance to apply its expertise or discretion and possibility of avoiding the need for the court to intervene. Franks v. Nimmo, 683 F.2d 1290, 1294 (10th Cir. 1982) (citation omitted); see also St. Regis Paper Co. v. Marshall, 591 F.2d 612, 613-14 (10th Cir. 1979). Plaintiff asserts claims regarding the alleged actions of the Osage Agency pursuant to the APA. A party is required to exhaust administrative remedies under the APA when expressly required by statute, or “when an agency rule requires appeal before review and the administrative Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 20 of 27 15 action is made inoperative pending that review.” Darby, 509 U.S. at 154. In the present case, exhaustion is mandated by Interior regulations found in 25 C.F.R. Part 2 and 43 C.F.R. Part 4. Under these regulations, if an agency decision is subject to appeal to a superior authority within the Department, a party must appeal the decision to the highest authority within the agency before judicial review if available. Coosewoon, 25 F.3d at 924-25 (citing 25 C.F.R. § 2.6(a)); 43 C.F.R. § 4.314(a) (“No decision of [a] . . . BIA official that at the time of its rendition is subject to appeal to the Board, will be considered final so as to constitute agency action subject to judicial review under 5 U.S.C. [§] 704…”). The BIA regulations for Leasing of Osage Reservation Lands for Oil and Gas Mining, 25 C.F.R. Part 226, provide that decisions of the Superintendent may be appealed pursuant to 25 C.F.R. Part 2.8 25 C.F.R. § 226.44. Plaintiff asks this Court to review the following actions taken by the Osage Agency: (1) approval of an oil lease assignment; (2) approval of an APD for Well No. 3; (3) approval of an APD for Well No. 4; and (4) approval of any other “unknown” leases, APD’s, or workovers on portions of the Osage Mineral Estate underlying surface lands owned by Plaintiff. In requesting the Court’s review, Plaintiff cites 5 U.S.C. § 706(2)(A), alleging that the Osage Agency’s actions in approving the lease and permits were arbitrary and capricious. Plaintiff requests declaratory relief declaring the lease(s) and permits invalid, vacating the lease(s) and permits pending corrective action by the BIA, and ordering the BIA to terminate operation of the subject wells until the third parties operating them have remediated alleged environmental damages and satisfied other “conditions precedent” for access to the property. However, Plaintiff does not 8 Use of the term “may” in 25 C.F.R. Part 226 regarding appeal is not dispositive. The optional “may” refers to the ability of an aggrieved party to appeal—a party is not required to appeal simply because it is aggrieved by agency action. See Gilmore v. Weatherford, 694 F.3d 1160, 1169 (10th Cir. 2012) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)). Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 21 of 27 16 assert that he has exhausted administrative remedies for any of the agency’s alleged actions for which he seeks review, and to date, no administrative appeals of those actions have been filed. Accordingly, this Court should find that because Plaintiff has not exhausted administrative remedies for the agency actions at issue as required by Interior regulations, that these actions are not “final” and thus not subject to judicial review under the APA. Accordingly, the Complaint should be dismissed. D. Plaintiff failed to identify any final agency action under the APA with respect his claim regarding all other “unknown” leases and permits approved since January 1, 1970. In the instant case, Plaintiff seeks review pursuant to the general review provisions of the APA, and therefore, the “agency action” in questions must be “final agency action.” See Lujan, 497 U.S. at 882 (citing 5 U.S.C. § 704). To the extent that Plaintiff challenges the approval of “unknown” leases, drilling and workover permits approved by the Osage Agency since January 1, 1970, he fails to satisfy the statutory standing requirements of the APA. See Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir. 1998). Plaintiff has the burden of identifying specific federal conduct and explaining how such conduct constitutes final agency action within the meaning of the APA. See Lujan, 497 U.S. at 882; see also Catron Cnty. v. U.S. Fish and Wildlife Serv., 75 F.3d 1429, 1434 (10th Cir. 1996). A claim for “unknown” leases and permits fails to satisfy this burden. Further, to meet the prudential requirements of standing under the APA, Plaintiff “must establish that [he has] suffered a legal wrong because of the challenged agency action, or [is] adversely affected or ‘aggrieved by agency action within the meaning of a relevant statute.’” Mount Evans v. Madigan, 14 F.3d 1444, 1453 (10th Cir. 1994) (citing Air Courier Conference of Am. v. American Postal Workers Union, AFL-CIO, 498 U.S. 517, 523 (1991)). Plaintiff has not done so. Plaintiff cannot, and does not, allege any distinct identifiable injury-in-fact resulting Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 22 of 27 17 from the challenged approval of “unknown” leases and permits since January 1, 1970. Since Plaintiff failed to identify a final agency action under the APA with respect to “unknown” leases and permits approved since January 1, 1970, any claims related thereto must be dismissed. E. Plaintiff’s claims regarding the two APD’s are moot. “Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F. 3d 1096, 1109 (10th Cir. 2010) (citation omitted). If a case is moot, the court has no subject matter jurisdiction. Schell et al. v. OXY USA, Inc., 814 F.3d 1107, 1114 (10th Cir. 2016) (citing Unified Sch. Dist. No. 259 v. Disability Rights Ctr. of Kan., 491 F.3d 1143, 1146-47 (10th Cir. 2007)). As mootness is an issue of subject matter jurisdiction, it can be raised at any stage of the proceedings. Id. (citing Ind v. Colo Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015)). “Declaratory judgment actions must be sustainable under the same mootness criteria that apply to any other lawsuit.” Rio Grande Silvery Minnow, 601 F.3d at 1109-10. In the declaratory judgment context, the mootness inquiry looks to whether the requested relief will actually alter the future conduct of the named parties. Schell, 814 F.3d at 1114; see also Hewitt v. Helms, 482 U.S. 755, 761 (1987). “The crucial question is whether granting a present determination of the issues offered will have some effect in the real world.” Rio Grande Silvery Minnow, 601 F.3d at 1110 (quoting Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005)). In the present case, it is not possible to afford relief between the parties that will influence Federal Respondents’ future conduct because this Court has already ruled against Federal Respondents in a case raising almost identical claims, and Federal Respondents are already taking corrective actions in accord with that ruling. In Hayes v. Chaparral Energy, LLC et al., 4:14-cv-495-GKF-PJC (N.D. Okla., Mar. 23, 2016), David Hayes, an Osage County surface Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 23 of 27 18 owner, filed suit against Federal Respondents alleging that they failed to comply with NEPA in its approval of an oil and gas mining lease and two APD’s for Chaparral Energy, LLC (“Chaparral”), and asserting state law trespass claims against Chaparral. At the crux of Mr. Hayes’ claims against Federal Respondents, was the Osage Agency’s continued reliance on the programmatic Environmental Assessment for the Oil and Gas Leasing Program of the Osage Indian Tribe issued by the BIA in May 1979 (“1979 EA”) to approve oil and/or gas leases and mining operations in Osage County. On December 21, 2015, the Court issued an Opinion and Order in favor of Mr. Hayes, finding that: (1) Federal Respondents relied on an applicable categorical exclusion in their approval of the lease; (2) Federal Respondents approved the APD’s without following proper procedures to rely upon the 1979 EA or preparing a new environmental assessment in support of the action; and (3) reliance upon the 1979 EA, without supplementation thereto, in order to approve oil and gas leasing operations within the Osage Mineral Estate was arbitrary and capricious. ECF No. 98. As a result, the Court ruled that the lease and APD’s were “void ab initio.” Id. On January 5, 2016, the Court issued an Amended Opinion and Order making minor technical corrections to the original ruling. ECF No. 111. On March 29, 2016, the Court issued a Second Amended Opinion and Order, clarifying the original ruling and remanding the matter to the Agency for further administrative proceedings, and a separate Order staying the state law trespass claim against Chaparral. ECF No. 155. In light of the Court’s ruling, on remand, the Osage Agency determined that the validity of all oil and/or gas leases and permits approved in reliance upon the 1979 EA has been placed into doubt. Accordingly, to ensure the validity of such leases and permits, the Agency developed the following process by which it is conducting NEPA compliance review thereof: Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 24 of 27 19 (1) Identify all oil and/or gas leases and permits that are currently in production and were approved in reliance upon the 1979 EA; (2) Provide written notice to potentially affected lessees informing them of the Court’s opinion in Hayes and advising that in accordance therewith, the Osage Agency is undertaking NEPA compliance review; (3) Require potentially affected lessees to contact the Osage Agency to discuss NEPA compliance and provide available information that may assist with the Agency’s review; (4) Evaluate whether identified oil and/or gas leases and permits were approved in compliance with NEPA; and (5) In the event that the Osage Agency determines that a lease or permit lacks adequate NEPA review, initiate appropriate measures to bring the lease or permit into compliance. See Ex. A (Supt. Policy Guidance Letter dated April 21, 2016), attached to this motion. The APD’s for Chance Well Nos. 3 and 4 were approved by the Osage Agency in reliance on the 1979 EA. As a result, both APD’s are subject to the NEPA compliance review process the Osage Agency implemented in April 2016 pursuant to the Court’s ruling in Hayes. Any determination that this Court might make regarding the NEPA analysis conducted in approving these APD’s would have no real-world effect in light of the actions BIA is already taking. Accordingly, Plaintiff’s claims regarding the APD’s for Chance Well Nos. 3 and 4 should be dismissed as moot. IV. CONCLUSION Plaintiff fails to demonstrate that the Court has subject matter jurisdiction over his claims. Plaintiff’s claims are time-barred and Plaintiff fails to demonstrate that the claims should be Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 25 of 27 20 equitably tolled. Nor have Federal Respondents waived their sovereign immunity. Plaintiff did not exhaust administrative remedies and can point to no final agency action. Finally, Plaintiff’s claims regarding the APDs are moot. Therefore, Federal Respondents respectfully requests that all claims in the First Amended Complaint be dismissed under Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction. Dated this 23rd day of November, 2016. Respectfully submitted, DANNY C. WILLIAMS, SR. United States Attorney CATHRYN D. McCLANAHAN, OBA No. 14853 Assistant United States Attorney 110 West 7th Street, Suite 300 Tulsa, Oklahoma 74119 T: 918-382-2700 Cathy.McClanahan@usdoj.gov JOHN C. CRUDEN Assistant Attorney General /s/ Jody H. Schwarz JODY H. SCHWARZ DC Bar No. 493998 Trial Attorney United States Department of Justice Environment & Natural Resources Division P.O. Box 7611 Washington, D.C. 20044-7611 T: (202) 305-0245 F: (202) 305-0506 jody.schwarz@usdoj.gov Attorneys for Federal Respondents Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 26 of 27 21 CERTIFICATE OF SERVICE I hereby certify that on November 23, 2016, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System, which will send notification of such filings to the parties entitled to receive notice. /s/ Jody H. Schwarz Jody H. Schwarz Case 4:16-cv-00549-JHP-PJC Document 25 Filed in USDC ND/OK on 11/23/16 Page 27 of 27 Case 4:16-cv-00549-JHP-PJC Document 25-1 Filed in USDC ND/OK on 11/23/16 Page 1 of 2 Case 4:16-cv-00549-JHP-PJC Document 25-1 Filed in USDC ND/OK on 11/23/16 Page 2 of 2