Western Energy Alliance v. Jewell et al

MOTION to Dismiss for Lack of Jurisdiction Complaint Dkt. No 1, Counts II and III

D.N.M.November 9, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO WESTERN ENERGY ALLIANCE, Petitioner, v. S.M.R. JEWELL, in her official capacity as Secretary of the U.S. Department of the Interior, and the BUREAU OF LAND MANAGEMENT, Defendants. No. 1:16-cv-00912-WJ-KBM FEDERAL DEFENDANTS’ MOTION AND MEMORANDUM TO DISMISS PETITIONER’S COUNTS II AND III Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 1 of 29 i TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 STANDARD OF REVIEW ............................................................................................................ 5 ARGUMENT .................................................................................................................................. 6 I. PETITIONER LACKS STANDING TO BRING COUNTS II AND III ........................... 6 A. Petitioner has Failed to Establish Associational Standing ............................................ 8 1. Petitioner has not Identified which Members are Harmed ..................................... 9 2. Environmental and Taxpayer Harms are not Germane to WEA’s Purpose ......... 10 B. Petitioner Has Failed to Demonstrate Injury in Fact .................................................. 11 1. Petitioner has Not Specified which Parcels its Members Sought to Lease .......... 12 2. Petitioner Does Not Have Taxpayer Standing .................................................... 13 C. Petitioner Member Companies’ Injuries are not Traceable to BLM’s Conduct ......... 15 D. Petitioner’s Injuries are not Redressable .................................................................... 19 II. PETITIONER BRINGS AN IMPERMISSIBLE PROGRAMMATIC CHALLENGE ... 21 CONCLUSION ............................................................................................................................. 25 Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 2 of 29 ii Table of Exhibits Document Exhibit Number BLM Handbook 1624-1: Planning for Mineral Resources 1 BLM Manual 3120 2 BLM Handbook 3120-1 3 Marc Humphries, Cong. Research Serv., R42432, U.S. Crude Oil and Gas Production in Federal and Nonfederal Areas 4 Cushing, OK WTI Spot Price FOB (Dollars per Barrel) 5 Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 3 of 29 1 Federal Defendants S.M.R. Jewell and the Bureau of Land Management (“BLM”), by and through undersigned counsel of record, hereby move to dismiss Counts II and III of Petitioner, Western Energy Alliance’s (hereinafter, “Petitioner” or “WEA”) August 11, 2016 Complaint, Dkt. No. 1. Counts II and III relate to BLM’s alleged violations of the Mineral Leasing Act (“MLA”).1 Counsel for Petitioner has indicated that Petitioner opposes this motion. INTRODUCTION The Court should dismiss Petitioner’s Counts II and III for lack of jurisdiction for two reasons. First, Petitioner lacks standing. Petitioner failed to satisfy the requirements of associational standing because it declined to specify which members are injured, and because it has not shown that all of the interests it alleges are injured are germane to its organizational purpose. Petitioner also failed to show injury-in-fact because it has not specified which parcels it wishes to lease, and it cannot show taxpayer harm. Furthermore, any injuries it does have are based on such a weak chain of conjecture that any injuries are speculative and are not redressable by this Court. 1 Federal Defendants are not moving to dismiss Petitioner’s Freedom of Information Act claim, Count I. Federal Defendants read Counts II and III as two parts of one claim alleging that BLM has violated the MLA, split into Declaratory Judgment Act (“DJA”) and Administrative Procedure Act (“APA”) claims. See Compl. ¶¶ 111–25. These claims are duplicative, as five paragraphs of each count are identical. Compare Compl. ¶¶ 112, 119; 113, 120; 115, 121; 116, 122; 117, 124. Furthermore, neither the DJA nor the APA provide an independent basis for jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950) (DJA); Califano v. Sanders, 430 U.S. 99, 107 (1977) (APA). Nevertheless, Federal Defendants do not consider these claims to be so “vague and ambiguous that [they] cannot reasonably prepare a response.” See Fed. R. Civ. P. 12(e). Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 4 of 29 2 Second, even if Petitioner had standing, Petitioner brings an impermissible programmatic challenge by failing to challenge specific agency actions. Petitioner perceives a problem with the manner in which BLM is running lease sales nationwide, and requests a blanket order compelling the BLM to remedy that problem. See Compl. at 29. But in so doing, Petitioner fails to observe the requirements of the APA. It does not identify and challenge particular lease sales (or delayed lease sales) that harmed a particular WEA member. The APA does not permit Petitioner to challenge an entire agency program, nor does it permit this court to grant programmatic relief. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 893 (1990). Insofar as Petitioner or its members have objections to discrete lease sales, or any other agency actions or omissions within the meaning of 5 U.S.C. § 551, it is incumbent on them to challenge those agency actions directly. Because Petitioner has not done so here, Counts II and III must be dismissed. BACKGROUND The MLA, 30 U.S.C. §§ 181–287, provides the Secretary of the Interior with the authority to offer for lease certain federal minerals, including oil and gas. The MLA and its implementing regulations provide BLM with broad discretion to determine which areas are available for leasing, when to offer parcels in a lease sale, and the terms and conditions of the leases that it issues for specific parcels that are made available for leasing. See WEA v. Salazar, 709 F.3d 1040, 1043 (10th Cir. 2013) (citing Udall v. Tallman, 380 U.S. 1, 4 (1965); Justheim Petroleum Co. v. Dep’t of the Interior, 769 F.2d 688 (10th Cir. 1985); McDonald v. Clark, 771 F.2d 460 (10th Cir. 1985)). Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 5 of 29 3 The process of making public lands available for oil and gas leasing and allowing for development is a three-stage decision-making process. See Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377 F.3d 1147, 1151 (10th Cir. 2004). First, BLM must determine which lands should be open or closed to oil and gas leasing and prescribe necessary lease stipulations to protect various resources in the event of future leasing. This is done through the land-use planning process that is required by 43 U.S.C. § 1712 and 43 C.F.R. Part 1600. In the second stage, BLM decides which particular parcels of land will be offered for lease in a competitive lease sale. See 43 C.F.R. Subpart 3120. Third, BLM determines whether, and under what conditions, it will approve specific development proposals for existing leases. 30 U.S.C. § 226(g); 43 C.F.R. § 3162.3-1. With respect to the second stage of the leasing process, which is the focus of Petitioner’s allegations, the MLA provides that “[l]ease sales shall be held for each State where eligible lands are available at least quarterly[,]” 30 U.S.C. § 226(b)(1)(A) (emphasis added). And the MLA’s implementing regulations specify that “[a]ll lands available for leasing shall be offered for competitive bidding . . . including, but not limited to . . . lands included in any expression of interest [(“EOI”)] or noncompetitive offer,”2 among other lands. See 43 C.F.R. § 3120.1-1(e). But neither the MLA nor its implementing regulations prescribe how BLM should determine which public lands are “available” for mineral leasing. Instead, the Secretary retains “considerable discretion to determine which lands will be leased.” See WEA, 709 F.3d at 1044 (citing 30 U.S.C. §§ 226(a), (b)(1)(A)). 2 An EOI is an informal request that certain lands be included in an oil and gas competitive lease sale. See id. § 3120.1-1(e). Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 6 of 29 4 In exercise of that discretion, BLM has provided guidance on how to evaluate whether lands should be made available for leasing and mineral development and whether they should be included in a given lease sale. On May 17, 2010, the Director of BLM issued Instruction Memorandum (“IM”) 2010-117, which provides BLM employees with internal guidance intended to “establish[] a process for ensuring orderly, effective, timely, and environmentally responsible leasing of oil and gas resources on Federal lands.” See U.S. Dep’t of the Interior, Bureau of Land Management, IM 2010-177, Dkt. No. 11-3 at 1, 4 (Ex. 3 to Conservation Grps Mot. for Intervention). IM 2010-117 provides general guidance to field offices on the distribution of “lease parcel review responsibilities.” See id. at 4 (citing 30 U.S.C. § 226(b)(1)(A); 43 C.F.R. § 2120.1-2(a)). Although this IM expired by its terms on September 30, 2011, see Dkt. No. 11-3 at 2, part of the guidance was incorporated into BLM Handbook H- 1624-1: Planning for Fluid Mineral Resources (updated January 28, 2013), Ex. 1; BLM Manual 3120 (updated February 18, 2013), Ex. 2; and BLM Handbook 3120-1 (updated February 18, 2013) on Competitive Oil and Gas Leasing, Ex. 3. According to its guidance, to determine which parcels are available for leasing, the applicable BLM state office completes an initial review of eligible parcels, and then sends a preliminary parcel sale list to the field office for review and confirmation. Manual 3120, § .42A, Ex. 2 at 2. The BLM field office assembles an interdisciplinary parcel review team, which reviews the preliminary list to ensure conformance with land use plans and compliance with the National Environmental Policy Act (“NEPA”) and other requirements. Id. § .43A, Ex. 2 at 3. The field manager (or in some cases, the district manager) forwards the finalized NEPA document and a recommendation for each parcel to the applicable state director. Id. § .43B, Ex. 2 at 3. The Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 7 of 29 5 recommendation may include offering a parcel with appropriate stipulations, offering a parcel with modified boundaries, or deferring a parcel from leasing, pending further evaluation of specified issues. Handbook 3120-1, at 9-10, Ex. 3 at 2–3. The BLM state office offering the parcel for sale posts the final sale notice with a list of the offered parcels at least 45 days prior to the sale date, and typically as many as 90 days prior. See 43 C.F.R. § 3120.4-2, Manual 3120, § .52, Ex. 2 at 5. Any party may protest a parcel offered for sale within thirty days of posting of the final sale notice, Manual 3120, § .53, Ex. 2 at 5, and BLM “may suspend the offering of a specific parcel while considering a protest or appeal against its inclusion in a Notice of Competitive Lease Sale.” 43 C.F.R. § 3120.1-3. STANDARD OF REVIEW Rule 12(b) of the Federal Rules of Civil Procedure allows courts to dismiss a complaint for “lack of subject-matter jurisdiction.” See Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b) is appropriate in cases, such as this, that seek judicial review of agency action or inaction pursuant to Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994), but that fail to state a claim within the Court’s jurisdiction. See Kane Cty v. Salazar, 562 F.3d 1077, 1086 (10th Cir. 2009) (“[N]othing in Olenhouse . . . precludes an APA-based complaint from being summarily dismissed pursuant to Federal Rule of Civil Procedure 12(b).”). Pursuant to Rule 12(b)(1), a complaint must be dismissed for lack of subject matter jurisdiction if the Petitioner does not have standing, see Steel Co. v. Citizens for a Better Envt., 523 U.S. 83, 102 (1998), or “the cause is not one described by any jurisdictional statute.” See Baker v. Carr, 369 U.S. 186, 198 (1962). Because federal courts are courts of limited jurisdiction, “the presumption is that they lack jurisdiction unless and until a plaintiff pleads Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 8 of 29 6 sufficient facts to establish it.” Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994) (citations omitted). “Mere conclusory allegations of jurisdiction are not enough; the party pleading jurisdiction ‘must allege in his pleading the facts essential to show jurisdiction.’” Id. (quoting Penteco Corp. Ltd. P’ship-1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991)). Motions to dismiss pursuant to Rule 12(b)(1) may take two forms. In the first form, the movant asserts that the allegations in the complaint on their face fail to establish the court’s subject matter jurisdiction. “In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.” Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) (citation omitted). In the second form, the movant may present evidence challenging the factual allegations in the complaint “upon which subject matter jurisdiction depends.” Id. at 1003 (citation omitted). “When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint’s factual allegations . . . [but] reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.” Id. (citations omitted). With one small exception noted below in Argument section I.C., this motion brings a facial challenge to the Court’s jurisdiction over Counts II and III. ARGUMENT As set forth below, Petitioner’s Counts II and III must be dismissed for lack of jurisdiction under 12(b)(1) because Petitioner does not have standing to bring these claims, and Petitioner fails to challenge final agency action. I. Petitioner Lacks Standing to Bring Counts II and III Whether a party has standing under Article III of the U.S. Constitution is a “threshold jurisdictional question” that a court must decide before it may consider the merits. Steel Co., 523 Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 9 of 29 7 U.S. at 102. A party’s standing to sue “constitutes the core of Article III’s case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishing its existence.” Id. at 103–04. In order to demonstrate standing under Article III, a party must establish, at an “irreducible constitutional minimum” three requirements: First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized and (b) “actual or imminent, not “conjectural” or “hypothetical.” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (alterations in the original, citations omitted). Petitioner must satisfy the injury, causation, and redressability requirements with respect to each claim. Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008). Furthermore, because Petitioner seeks prospective relief, see Compl. 29 ¶¶ 3–4, it must be “suffering a continuing injury or be under a real and immediate threat of being injured in the future.” Hill v. Vanderbilt Capital Advisors, LLC, 834 F. Supp. 2d 1228, 1257 (D.N.M. 2011) (quoting Tandy v. City of Wichita, 380 F.3d 1227, 1283 (10th Cir. 2004)). Here, Petitioner argues that BLM’s “illegal administration of its leasing program has injured and will continue to injure individual Alliance members” in five ways, i.e., by: (1) “prevent[ing] member companies from drilling wells” on federal, Indian, state, and fee lands; (2) “restrict[ing] member companies’ operational flexibility thereby reducing member companies’ ability to plan projects so that waste is reduced and development is executed in the most environmentally sensitive manner;” (3) forcing missed deadlines in agreements with third parties Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 10 of 29 8 and BLM; (4) denying “member companies[’] . . . ability to realize revenue;” and (5) denying “federal and state taxpayers the ability to receive royalty payments from the development of federal minerals.” Compl. ¶¶ 76–77. Each of these alleged injuries is insufficient to establish standing. First, Petitioner has failed to establish associational standing because it has not identified which of its members are harmed, and environmental and taxpayer harms are not germane to its organizational purpose. Second, Petitioner has failed to satisfy the injury-in-fact requirement, because it has not identified which parcels its members wish to lease and because it cannot assert taxpayer standing. Third, Petitioner’s alleged injuries are not traceable to BLM’s actions because they rely on a long and attenuated chain of causation, built from assumptions that are too speculative to support Article III standing. And fourth, Petitioner’s injuries are not redressable by this Court because the relief requested by Petitioner will not redress its members’ alleged injuries. A. Petitioner has Failed to Establish Associational Standing Petitioner has not made allegations sufficient to establish associational standing. To sue on behalf of its members, an association must demonstrate that “(a) its members would otherwise have standing to sue in their own right, (b) the interests it seeks to protect are germane to the organization’s purpose, and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). Petitioner’s allegations do not satisfy the first, and, as to certain alleged injuries, the second, prongs, and therefore fail to demonstrate associational standing. Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 11 of 29 9 1. Petitioner has not Identified which Members are Harmed Petitioner fails to identify which member firms are harmed by BLM’s alleged failure to hold quarterly lease sales. See, e.g., Complaint ¶ 21 (“Alliance members are among the companies that submitted [EOIs] . . . .”). As a result, Petitioners have failed to meet the minimum requirements of associational standing. See Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009) (“the Court . . . require[s] plaintiffs claiming organizational standing to identify members who have suffered the requisite harm . . . .”); Chamber of Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (“When a petitioner claims associational standing, it is not enough to aver that unidentified members have been injured”) (citing Summers, 555 U.S. at 498). Without alleging which members are harmed, Petitioner cannot demonstrate that individual members would have standing to sue. See Osage Producers Ass’n v. Jewell, No. 15-CV-469-GKG-FHM, - -- F. Supp. 3d ---, 2016 WL 3093938, at *3 (N.D. Okla. June 1, 2016) (dismissing case when organization did not specify “at least one member adversely affected by each challenged agency action.”). To the extent Petitioner claims it cannot specify certain information, such as which members are harmed, because BLM has not yet released documents pursuant to a FOIA request, this argument does not have merit. The burden is on the plaintiff to frame a “complaint with enough factual matter (taken as true) to suggest” that he or she is entitled to relief. Robbins, 519 F.3d at 1247 (quoting Bell Atl. Corp., v. Twombly, 550 U.S. 544, 556 (2007)); see also Clapper v. Amnesty Int’l, 133 S. Ct. 1138, 1148 n.4 (2013) (“[I]t is [plaintiffs’] burden to prove their standing by pointing to specific facts[.]” (citing Lujan, 504 U.S. at 561)). In Clapper, the Supreme Court found that plaintiffs who had “no actual knowledge” of the Government’s Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 12 of 29 10 surveillance practices did not have standing because it was “speculative whether the Government will imminently target [their] communications[.]” See Clapper, 133 S. Ct. at 1148. This was so even though the Government could not disclose the information that plaintiffs needed without risks to national security. See id. at 1148 n.4. Likewise here, if Petitioner does not have the information needed to know whether its members have actually been injured, or are in imminent danger of injury, its claims of injury are merely conjectural. Petitioner’s members know the parcels for which they have submitted EOIs. They know whether they have bid on any of those parcels at auction, and whether they have leased those parcels. Yet Petitioner fails to allege that BLM has unreasonably delayed action on any particular EOI. Petitioner’s attempt to reverse the normal pleading burden only shows the conjectural nature of its alleged injuries. Furthermore, as explained in more detail below, Petitioner’s MLA claims can be dismissed on alternate grounds without the aid of additional information. 2. Environmental and Taxpayer Harms are not Germane to WEA’s Purpose Even if Petitioner had identified which member companies are harmed, and demonstrated that these member companies have standing to sue in their own right, the environment and the public fisc are not germane to Petitioner’s interests. The requirement that “an association plaintiff be organized for a purpose germane to the subject of its member’s claim raises an assurance that the association’s litigators will themselves have a stake in the resolution of the dispute, and thus be in a position to serve as the defendant’s natural adversary.” United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 555–56 (1996). Petitioner alleges that it is injured by being unable to plan and thus develop “in the most environmentally sensitive manner;” and that leasing delays “deny federal and state taxpayers the Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 13 of 29 11 ability to receive royalty payments . . . .” see Compl. ¶ 77 (ii), (v). However, neither interest is germane to WEA’s purpose as a trade association representing independent oil and natural gas producers. See Compl. ¶ 1. The courts have consistently held that trade associations may not base standing on non- economic harm. See Ranchers Cattlemen Action Legal Fund v. U.S. Dep't of Agric., 415 F.3d 1078, 1104 (9th Cir. 2005), as amended (Aug. 17, 2005) (cattle association could not base standing on environmental harms because it was organized to protect “trade and marketing” interests); Pac. Nw. Generating Co-op. v. Brown, 38 F.3d 1058, 1063 (9th Cir. 1994) (power- generation companies could not base standing on alleged injuries to salmon); Wyo. Timber Indus. Ass’n v. U.S. Forest Serv., 80 F. Supp. 2d 1245, 1252–53 (D. Wyo. 2000) (protection of aesthetic and recreational interests were not germane to the purposes of timber industry trade association) (appeal dismissed as moot). Similarly here, Petitioner’s purpose is to protect the economic interests of its members, not to protect the environment or the public fisc. Neither of these interests are germane to Petitioner’s organizational purpose, and it cannot base its standing on allegations of injuries to these interests. B. Petitioner Has Failed to Demonstrate Injury in Fact Even if Petitioner had specified which members were harmed by BLM’s alleged failure to conduct quarterly lease sales, Petitioner’s allegations would not satisfy the injury in fact requirement for two reasons. First, Petitioner has not identified any parcels for which its members submitted EOIs and which have not been offered for sale. Second, Petitioner cannot assert the interests of state and federal taxpayers. Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 14 of 29 12 1. Petitioner has Not Specified which Parcels its Members Sought to Lease As a preliminary matter, Petitioner has failed to specify which parcels have not yet been offered for sale, despite being identified in EOIs submitted by its members. Other courts, including the Supreme Court, have found similarly vague allegations to be insufficient to confer standing. In Summers, the Supreme Court found that plaintiffs did not have standing when they failed “to allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of [plaintiffs’].” See 555 U.S. at 495. Similarly, in Swanson Group Manufacturing v. Jewell, allegations that shortfalls in Forest Service timber sales may mean that the plaintiff could not continue to operate its facility were “the kind of uncertain and unspecific prediction of future harm that is inadequate to establish Article III standing.” See 790 F.3d 235, 242 (D.C. Cir. 2015). In both of these cases, the courts found that these vague allegations of injury were insufficient to confer standing. This Court should come to the same conclusion here. “Absent the necessary allegations of demonstrable, particularized injury, there can be no confidence of ‘a real need to exercise the power of judicial review’ . . . .” Warth v. Seldin, 422 U.S. 490, 508 (1975) (citations omitted); see also Christou v. Beatport, LLC, 849 F. Supp. 2d 1055, 1070 (D. Colo. 2012) (plaintiff did not have standing when he did not offer facts demonstrating that he owned properties allegedly affected by antitrust violations); Amigos Bravos v. U.S. BLM, 816 F. Supp. 2d 1118, 1133–34 (D.N.M. 2011) (finding that environmental plaintiffs lacked standing when they failed to identify which lands subject to lease sales that they use). In one instance, when discussing lease sales by the Eastern States Office, Petitioner fails to even specify the states in which the parcels for which its members have submitted EOIs are Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 15 of 29 13 located. See Compl. ¶ 68 (“EOIs for parcels in at least some of these states have been pending . . . .”). Since Petitioner alleges that BLM must conduct lease sales quarterly for each state, see Compl. ¶ 19, its failure to allege the particular states where the parcels its members wish to lease are located is fatal to its claims relating to the Eastern States Office. See Clapper, 133 S. Ct. at 1148 n.4 (2013) (“it is [Petitioner’s] burden to prove [its] standing by pointing to specific facts.” (citing Lujan, 504 U.S. at 561)). 2. Petitioner Does Not Have Taxpayer Standing Even if Petitioner were more specific in its allegations, Petitioner cannot base its standing on the assertion that BLM is denying “federal and state taxpayers the ability to receive royalty payments from the development of federal minerals.” See Compl. ¶¶ 76–77. Federal taxpayer standing fails for two reasons. First, a complaint alleging taxpayer standing may only be directed at taxing and spending actions authorized by Article I, Section 8 of the Constitution, not actions by a federal agency acting under authority that Congress delegated to it under the Property Clause, Article IV, Section 3. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 479–80 (1982) (citing Flast v. Cohen, 392 U.S. 83, 102 (1968)); Bowen v. Kendrick, 487 U.S. 589, 619 (1988). “‘[N]eedful rules ‘respecting’ the public lands” are an exercise of Property Clause authority. See Kleppe v. New Mexico, 426 U.S. 529, 539 (1976). Thus, any actions that BLM takes under the authority Congress delegated to it through the MLA are an exercise of Property Clause authority, not the taxing and spending authority, and cannot be the subject of a suit based on taxpayer standing. Second, “[a]bsent special circumstances . . . standing cannot be based on a plaintiff's mere status as a [federal] taxpayer.” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 134 Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 16 of 29 14 (2011). The Supreme Court found that this general lack of taxpayer standing applies to challenges to decisions not to collect revenue as well as to challenges to taxes, since “[t]o conclude there is a particular injury in fact would require speculation that [] lawmakers react to revenue shortfalls by increasing respondents’ tax liability.” See id. 563 U.S. at 137. Furthermore, it would be “conjectural” to find that “any tax increase would be traceable to” the decision not to collect revenue, “as distinct from other governmental expenditures or other tax benefits.” Id. at 137–38. Here, Petitioner has only alleged a “generalized grievance,” and thus, cannot show federal taxpayer standing. See id. at 140 (quoting Flast, 392 U.S. at 106). Petitioner’s state taxpayer standing claims also fail. As a preliminary matter, Petitioner fails to allege that its members are taxpayers, identify the states in which its members pay taxes, or explain whether its members have submitted EOIs for parcels in the same states. In other words, Petitioner has failed to show that its members are taxpayers in a state that is allegedly losing royalty revenues as a result of BLM’s administration of its leasing program. Furthermore, because Petitioner is alleging a loss of federal royalty revenue to a state, not an illegal appropriation or expenditure,3 Petitioner is essentially bringing its claim on behalf of unnamed states, not those state’s taxpayers. Not only does this once again show a failure to plead its claims with particularity, but “absent statutory authorization, citizens and taxpayers may not 3 To show state taxpayer standing to challenge an appropriation or expenditure, the “state taxpayer must allege that appropriated funds were spent for an allegedly unlawful purpose and that the illegal appropriations and expenditures are tied to a direct and palpable injury threatened or suffered . . . .” Colo. Taxpayers Union, Inc. v. Romer, 963 F.2d 1394, 1401 (10th Cir. 1992) (citing Doremus v. Bd. of Educ., 342 U.S. 429, 433 (1952)). Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 17 of 29 15 bring a derivative suit on behalf of the state.” Gallagher v. Cont'l Ins. Co., 502 F.2d 827, 832 (10th Cir. 1974) (citations omitted); see also Mountain States Legal Found. v. Costle, 630 F.2d 754, 768–69 (10th Cir. 1980) (plaintiff could not bring action on behalf of State of Colorado). Without specifying which state has lost royalty revenues and showing that the suit is authorized by that state, Petitioner cannot bring claims related to those revenues. Even if Petitioner could bring a claim of loss of revenue on behalf of certain states, Petitioner would have to present “concrete evidence [that] revenues have decreased or will decrease . . . .” Wyoming v. U.S. Dep't of Interior, 674 F.3d 1220, 1234 (10th Cir. 2012). Otherwise, Petitioner would merely present a “generalized grievance” as its basis for “unwarranted litigation against the federal government.” See id. Petitioner has failed to plead facts that would “state a claim to relief that is plausible on its face,” and thus its taxpayer standing claims must be dismissed. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). C. Petitioner Member Companies’ Injuries are not Traceable to BLM’s Conduct Petitioner’s allegations of injury make a number of speculative leaps to connect BLM state offices’ scheduling of lease sales with its members’ alleged injuries, which include such harms as being unable to drill on federal, Indian,4 state, and fee lands; reductions in operational 4 Additionally, any inability of Petitioner’s member companies to develop minerals on Indian lands, see Compl. ¶ 77(i), is not traceable to BLM’s scheduling of lease sales. “[L]ands within an Indian reservation are not subject to the leasing provisions of 30 U.S.C.A. § 226.” Gonsales v. Seaton, 183 F. Supp. 708, 710 (D.D.C 1960); see also 43 CFR 3100.0-3(a)(2)(ii) (clarifying that “Indian reservations” are excepted from leasing under the MLA); Haley v. Seaton, 281 F.2d 620, 623 (D.C. Cir. 1960) (holding that “Indian lands are not leasable under the [MLA].”) (citing Executive Order Indian Reservations- Leasing Act, 34 Op.Atty.Gen. 171 (1924)). Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 18 of 29 16 flexibility; missed deadlines; losses in revenue; and losses of royalties to taxpayers. Compl. ¶ 77. Petitioner’s burden of demonstrating causation is not satisfied when “[s]peculative inferences are necessary to connect [its] injury to the challenged actions.” Nova Health Sys. v. Gandy, 416 F.3d 1149, 1157 (10th Cir. 2005) (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45–46 (1976)). The speculative inferences that Petitioner implicitly makes in its complaint are as follows: first, that if BLM were to offer more frequent lease sales, more parcels would be offered for sale, including all of the (unspecified) parcels for which Petitioner’s members have submitted EOIs; second, if a lease sale were held, the member companies would obtain their desired parcels; and third—specifically relating to its allegations of loss of revenue—if the member companies obtained their desired leases, those leases would be productive. Together, these links are too weak to maintain the chain of causation. First, Petitioner’s alleged harms are not traceable to BLM’s lease sale frequency. Regardless of frequency of sales, BLM must determine whether parcels are “available” before offering them for any sale. See 30 U.S.C. § 226(b). As discussed above in the background section, this is a complex process involving analyses under FLPMA and NEPA. See, e.g., BLM Handbook H-1624-1, Ex. 1 at 3. The Secretary, and by extension the BLM, also has considerable discretion in this regard. See WEA, 709 F.3d at 1044 (“The MLA . . . continues to vest the Secretary with considerable discretion to determine which lands will be leased”) (citing 30 U.S.C. §§ 226(a), 226(b)(1)(A)). Simply because a Petitioner member company has submitted an EOI for a particular parcel does not mean that the Secretary will determine that it is “available.” See Minerals Management, BLM, 53 Fed. Reg. 22814, 22828 (June 17, 1988) (“many if not most lands will not be ‘offered’ by the Bureau but are nonetheless available for filing an EOI.”). Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 19 of 29 17 Moreover, more frequent sales would not increase the number of parcels that are determined to be “available.” If anything, more frequent sales may simply result in fewer parcels being offered per lease sale. Any injury that Petitioner’s members experience from being unable to lease certain parcels is not traceable to the frequency of sales. Second, Petitioner’s alleged injuries are not traceable to the frequency of competitive lease sales because even if BLM offers for sale a parcel for which a Petitioner member company has submitted an EOI, there is no guarantee that the Petitioner member company would obtain a lease as a result of the sale. Parcels are offered for lease at auction. See 43 CFR § 3120.5-1. For Petitioner to be injured by a decreased frequency of sales, its member companies would have to be assured that they would be the winning bidder.5 The Tenth Circuit, when addressing this issue under the redressability prong, has found this chain of causation to be too attenuated. See Mount Evans Co. v. Madigan, 14 F.3d 1444, 1451 (10th Cir. 1994). The court in Mount Evans found that one of the plaintiff companies in that case did not have standing to force the Forest Service to rebuild a facility and allow the company the opportunity to compete for a sale because there was “no guarantee” that the petitioner “would be awarded the concession contract.” See id. at 1451. Similarly here, Petitioner’s allegations require the Court to speculate that a Petitioner member company would obtain a lease as a result of the sale of a parcel for which that member company has submitted an EOI. Such speculation cannot provide the basis for standing. 5 Even if a member company were to be the winning bidder, the BLM may decide not to issue a lease for that parcel and, therefore, reject the lease offer and refund the bidder's money. A lease offer may be rejected and the bid payment refunded, up until BLM executes and issues a lease. See WEA, 709 F. 3d at 1043–44; Roy G. Barton, 188 IBLA 331 (Sept. 26, 2016). Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 20 of 29 18 Third, even if one of Petitioner’s member companies obtains a lease and completes the permitting process, there is no guarantee that a lease will be profitable and generate revenue. Not all leases are productive, and many may produce paying quantities of oil and gas for only a short time. See Marc Humphries, Cong. Research Serv., R42432, U.S. Crude Oil and Gas Production in Federal and Nonfederal Areas 10 (2016), https://fas.org/sgp/crs/misc/R42432.pdf (last visited Nov. 8, 2016), Ex. 4 at 3. Leases may not be productive for various reasons that are not attributable to BLM, including equipment availability, oil and gas prices, capital costs, labor shortages, lack of commercial discovery, and holding of leases without drilling. See id. at 10–11, Ex. 4 at 3–4. Accordingly, even when a lease is obtained, it is speculative to assume that revenue will follow. See Wyoming ex rel. Sullivan v. Lujan, 969 F.2d 877, 882 (10th Cir. 1992). Recent commodity price decreases provide an alternative explanation for Petitioner’s loss of revenue.6 Between July of 2014 and July of 2015, the spot price of West Texas Intermediate Crude fell by more than half, from $103.59 per barrel to $50.90 per barrel. See U.S. Energy Info. Admin., Cushing, OK WTI Spot Price FOB, http://www.eia.gov/dnav/pet/hist/ LeafHandler.ashx?n=PET&s=RWTC&f=M (last visited Nov. 8, 2016), Ex. 5. The price bottomed out at $30.32 per barrel in February of 2016 and, as of September 2016, was at $45.18 per barrel. See id. These market conditions have also led to a dramatic decrease in the number of Applications for Permits to Drill that BLM receives for existing leases. See BLM, Onshore Oil 6 Federal Defendants concede that this argument relating to price decreases is a factual attack, but note that this public information may be considered when considering a motion to dismiss for lack of jurisdiction under 12(b)(1). See Holt, 46 F.3d at 1003 (“A court has wide discretion to allow . . . other documents . . . to resolve disputed jurisdictional facts under Rule 12(b)(1)) (citations omitted). Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 21 of 29 19 and Gas Operations, 81 Fed. Reg. 49,913, 49,914 (July 29, 2016). This drastic fall in crude oil prices is further evidence that any loss of revenue is not fairly traceable to BLM’s actions. See Swanson Grp. Mfg., 790 F.3d at 243–44 (plaintiffs failed to show economic injury was traceable from BLM’s failure to hold annual timber sales “rather than to an independent source, such as the recession.”) (citing Delta Constr. Co. v. EPA, 783 F.3d 1291, 1296–97 (D.C.Cir.2015)); c.f. Wyoming, 674 F. 3d at 1233 (“conclusory statements and speculative economic data” were “insufficient” to show that reductions in snowmobile entries into Yellowstone would result in decreased tax revenues for local governments). D. Petitioner’s Injuries are not Redressable Petitioner also lacks standing because its alleged injuries are not redressable by this Court. “To establish Article III standing” it must be “likely, as opposed to merely speculative, that the injury will be redressed by the relief requested.” See Tandy, 380 F.3d at 1283 (quoting Friends of the Earth v. Laidlaw Envtl. Servs.,Inc., 528 U.S. 167, 180–81 (2004)). For the same reasons that Petitioner’s injuries are not traceable to BLM’s actions or lack thereof, its injuries are also not redressable by this Court. “In this case, like many, ‘redressability and traceability overlap as two sides of a causation coin.’” Nova Health Sys., 416 F.3d at 1159 (quoting Cache Valley Elec. Co. v. Utah Dep't of Transp., 149 F.3d 1119, 1123 (10th Cir.1998)). The crux of Petitioner’s request for relief is that the Court order BLM to “abandon all currently existing lease sale schedules . . . and . . . adopt promptly revised lease sale schedules.” Compl. 29, ¶ 3. However, the Court cannot order that particular parcels be offered for sale. And even if it could, holding more frequent lease sales does not guarantee that more total parcels would be offered for Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 22 of 29 20 sale, or that Petitioner’s members would be able to develop the parcels for which they have submitted EOIs. Therefore, its injuries are not redressable by this Court. First, the Court cannot order that BLM offer for sale the parcels for which Petitioner member companies have submitted EOIs. See Marathon Oil Co. v. Babbitt, 966 F. Supp. 1024, 1025–26 (D. Colo. 1997) (dismissing for lack of standing a claim by an oil company seeking to compel DOI to offer tracts for oil and gas leasing), aff’d, 166 F.3d 1221 (10th Cir. 1999) (unpublished)). Because “the federal courts do not have the power to order competitive leasing . . . [a] favorable ruling in this case will not guarantee the [Petitioners] one nickel of [oil and gas] leasing royalties.” See Sullivan, 969 F.2d at 881. Second, even if the Court had the power to order lease sales, such an order would not redress Petitioner member companies’ injuries because holding an auction does not guarantee them the leases they seek. In Mt Evans, the court found that even if the plaintiff had the opportunity to compete for the concession contract, there was “no guarantee that [petitioner] would be awarded the concession contract, and there is no way this court or any other court could order the Forest Service to award [petitioner] that contract,” and therefore the petitioner’s injuries were not redressable. See 14 F.3d at 1451; see also Wyo. Sawmills Inc. v. U.S. Forest Serv., 383 F.3d 1241, 1247–79 (10th Cir. 2004) (“loss of the opportunity to bid” did not confer standing); Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 874 (10th Cir. 1992) (injury from “loss of the possibility of leasing” was “not redressable by a favorable decision.”) (citing Glover River Org. v. U.S. Dep’t of Interior, 675 F.2d 251, 253–54 (10th Cir. 1982)). Similarly here, even if BLM offered the parcels for which Petitioner member companies have submitted EOIs, there is Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 23 of 29 21 no guarantee that the companies would submit the winning bids at auction, and thus Petitioner’s injuries are not redressable by this Court. Petitioner’s complaint is an attempt to get around the Secretary’s discretion in determining which lands are available by targeting the frequency of sales. But Petitioner’s alleged injuries are not traceable to the frequency of sales, nor are they redressable by this Court. In sum, Petitioner’s claims of standing “founder[] on too many contingencies for [the court] to conclude that it meets the constitutional requirement of redressability.” See Sullivan, 969 F.2d at 881. And as discussed above, Petitioner’s alleged injuries, to the extent that Petitioner has associational standing, are conjectural and speculative. For all of these reasons, the Court should dismiss Petitioner’s claims for lack of standing. II. Petitioner Brings an Impermissible Programmatic Challenge Where, as here, no applicable statute supplies a private right of action for a petitioner’s claim challenging the actions of a federal agency, those claims may only be brought pursuant to the judicial review provisions of the APA. See 5 U.S.C. §§ 701–06; Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir. 1998). The APA’s waiver of sovereign immunity is limited. See High Country Citizens Alliance v. Clarke, 454 F.3d 1177, 1181 (10th Cir. 2006) (citing Califano, 430 U.S. at 105–07). The APA authorizes suit by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute[.]” 5 U.S.C. § 702. “Agency action” is defined in the APA to include “the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act[.]” Id., § 551(13). Thus, claims brought pursuant to the APA must challenge “circumscribed, discrete agency actions.” Norton v. Southern Utah Wilderness All. (SUWA), 542 Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 24 of 29 22 U.S. at 62; see also Lujan, 497 U.S. at 891 (“Under the terms of the APA, respondent must direct its attack against some particular ‘agency action’ that causes it harm.”). Further, the agency action complained of must be “final.” 5 U.S.C. § 704. Final agency actions are those that “mark[] the consummation of the agency’s decision-making process” and “by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 178 (1997) (internal quotations and citations omitted). The burden is on the party seeking review under the APA “to set forth specific facts . . . showing that he has satisfied its terms.” Lujan, 497 U.S. at 884. Petitioner here brings an improper programmatic challenge to the “[t]he manner in which BLM is presently scheduling and administering oil and gas lease sales.” Compl. ¶¶ 117, 124. In doing so, Petitioner fails to challenge a discrete final agency action and instead brings a broad programmatic challenge that is barred by the Supreme Court’s opinions in Lujan and SUWA. In Lujan, environmental groups challenged what they termed BLM’s “land withdrawal review program,” which is how they described BLM’s practice of reclassifying public lands that had previously been “withdrawn” from mineral leasing and mining activities. See 497 U.S. at 875, 879. The Supreme Court found that the challenged “land withdrawal review program” was not an “‘agency action’ within the meaning of § 702, much less a ‘final agency action’ within the meaning of § 704.” Id. at 890. The Court explained that “[t]he term ‘land withdrawal review program’ . . . does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations.” Id. The Court also made clear that even if any one land status determination was a final agency action, an entire program “cannot be laid before the courts for wholesale correction under the APA[.]” Id. at 893. Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 25 of 29 23 The Supreme Court reaffirmed the APA’s bar on programmatic challenges in SUWA. The environmental groups in SUWA alleged that BLM failed to carry out a statutory mandate. See 542 U.S. at 59 (quoting 43 U.S.C. § 1782(c)). The Supreme Court held that it could not compel BLM to act under § 706(1) of the APA because “a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete action that it is required to take.” Id. at 64 (citing 5 U.S.C. § 706(1)). The Court made clear that “[t]he limitation to discrete agency action precludes” that type of “broad programmatic attack.” See id. Petitioner’s Complaint inappropriately seeks “wholesale correction” of an entire program. Petitioner’s Complaint requests, inter alia, that the Court: 2. Declare the manner in which BLM is presently scheduling and administering oil and gas lease sales unlawful as a violation of the express terms of the [MLA]; 3. Require BLM to immediately abandon all currently existing lease sale schedules that do not comply with the [MLA] and to adopt promptly revised lease sale schedules that comply with the [MLA]; 4. Direct BLM to revise or rescind all agency guidance and instructional memoranda, including I.M. No. 2010-117, that direct implementation of BLM’s lease sale program in a manner contrary to law; Compl. 29, ¶¶ 2–4. Petitioner’s request that the Court declare BLM’s policies invalid without challenging discrete actions taken pursuant to those policies is not justiciable. See Lujan, 497 U.S. at 891; Sierra Club v. Peterson, 228 F.3d 559, 566 (5th Cir. 2000); Nat’l Wildlife Fed’n v. Caldera, No. Civ. A 00-1031(JR), 2002 WL 628649, at *4 (D.D.C. Mar. 26, 2002) (unpublished) (“[T]he prayer for declaratory relief is merely another way of approaching the programmatic relief that this court does not have the jurisdiction to grant.”). Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 26 of 29 24 Petitioner’s impermissible programmatic challenge is not saved by the fact that its Complaint references some specific lease sale cancellations. See, e.g., Compl. ¶ 29. In Peterson, the Fifth Circuit rejected a programmatic challenge brought by environmental groups where the groups “cited twelve allegedly ripe and allegedly improper timber sales” in support of their claim, but made clear “that these sales were examples of the larger even-aged management techniques they were challenging rather than the extent of their challenge.” 228 F.3d at 563–64; see also Caldera, 2002 WL 628649, at *4–5 (dismissing case where plaintiffs identified twenty- three permits as “examples of what plaintiffs see as rampant unlawfulness in the permitting program . . . .”). Similarly here, Petitioner’s examples are insufficient to overcome its failure to challenge a particular sale cancellation involving a specific parcel subject to a member company’s EOI, or to claim that BLM has unreasonably delayed action on a particular pending EOI. See Donelson v. United States, No. 14-CV-316-JHP-FHM, 2016 WL 1301169, at *10 (N.D. Okla. Mar. 31, 2016) (unpublished) (“Petitioners could not challenge an entire leasing program by identifying specific allegedly-improper final agency actions within that program and using those examples as evidence to support a sweeping argument . . . .”).7 Petitioner seeks the precise type of sweeping programmatic review barred by Lujan and Peterson. Petitioner’s claims must be dismissed because it attempts to challenge BLM’s policies on a “wholesale” basis rather than challenging a discrete final agency action. 7 It bears noting that, even if the Court ultimately were to determine that Petitioner has pleaded a claim as to one or more discrete agency actions, it would still have to satisfy itself that Petitioner has met the requirements of standing for each of those discrete actions—and we have already explained why Petitioner falls short of that burden. In addition, the Court would have to dismiss all other aspects of the complaint that assert a programmatic challenge or seek programmatic relief. Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 27 of 29 25 CONCLUSION Petitioner lacks standing to bring Counts II and III. It has failed to establish associational standing both because of the lack of specificity of its claims and because certain interests it alleges are harmed are not germane to its organizational purpose. Even if it had shown associational standing, it has failed to allege sufficiently specific facts to show a concrete injury. Furthermore, any injuries it has are not traceable to BLM’s actions, and not redressable by this Court. Petitioner also brings a non-justiciable programmatic challenge. For these reasons, the Court does not have jurisdiction over Petitioner’s Counts II and III and should dismiss those claims. Respectfully submitted this 9th day of November, 2016. JOHN C. CRUDEN Assistant Attorney General United States Department of Justice Environment & Natural Resources Division /s/ Rachel K. Roberts RACHEL K. ROBERTS (WA Bar. No. 50303) Trial Attorney Natural Resources Section c/o DOJ/DARC 7600 Sand Point Way NE Seattle WA 98115 Tel: (206) 526-6881 Fax: (206) 526-6665 Rachel.roberts@usdoj.gov Attorneys for Federal Defendants Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 28 of 29 26 CERTIFICATE OF SERVICE I hereby certify that on November 9, 2016, I filed through the United States District Court ECF System the foregoing document to be served by CM/ECF electronic filing on all counsel of record. /s/ Rachel K. Roberts RACHEL K. ROBERTS U.S. Department of Justice Case 1:16-cv-00912-WJ-KBM Document 19 Filed 11/09/16 Page 29 of 29 Exhibit 1 Case 1:16-cv-00912-WJ-KBM Document 19-1 Filed 11/09/16 Page 1 of 4 Form 1221-2 (June 1969) UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT MANUAL TRANSMITTAL SHEET Release 1-1749 Date 1/28/13 Subject H – 1624-1 – Planning for Fluid Mineral Resources 1. Explanation of Materials Transmitted: This release inserts Chapter V, Master Leasing Plans and a Glossary, into H-1624-1 – Planning for Fluid Mineral Resources, Rel. No. 1- 1583 dated 5/7/1990. 2. Reports Required: None. 3. Materials Canceled: None. 4. Filing Instructions: File as directed below REMOVE INSERT None Chapter V and the Glossary (11 pages) Michael Pool Acting Director, Bureau of Land Management Exhibit 1, Page 1 Case 1:16-cv-00912-WJ-KBM Document 19-1 Filed 11/09/16 Page 2 of 4 BLM MANUAL Rev. 5/7/90 Rel. 1-1580 Form 1221-2 (June 1969) UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT MANUAL TRANSMITTAL SHEET Release 1-1583 Date 5/7/90 Subject H-1624-1 PLANNING FOR FLUID MINERAL RESOURCES 1. Explanation of Materials Transmitted: This Handbook provides detailed instructions for complying with the fluid minerals supplemental program guidance (SPG) for resource management planning as prescribed in BLM Manual Section 1624.2. It contains, among other things, procedural guidance for analyzing and documenting reasonably foreseeable fluid mineral development and the impacts of such development on the human environment. 2. Reports Required: Within the next year, after the field has had some experience in implementing this Handbook guidance, the Washington Office will request Field Office comments to determine if changes are warranted. Additional related guidance on pre-lease and post-lease plan conformance and NEPA compliance review procedures and more detailed guidance on cumulative impact analysis procedures may also be incorporated into the Handbook at that time. 3. Materials Superseded: None. 4. Filing Instructions: File as directed below. REMOVE INSERT None H-1624-1 (Total: 50 Sheets) Carson W. Culp, Jr. Acting Deputy Director Exhibit 1, Page 2 Case 1:16-cv-00912-WJ-KBM Document 19-1 Filed 11/09/16 Page 3 of 4 H-1624-1 – PLANNING FOR FLUID MINERAL RESOURCES Illustration I (III.A) BLM MANUAL Rev. 5/7/90 Rel. 1-1580 Summary of BLM Planning Process 1 2 3 4 Process Phase PREPLANNING NOTICE OF INTENT IDENTIFY ISSUES PLANNING CRITERIA INVENTORY DATA COLLECT MGMT SITUATION ANALYSIS P U R P O S E “To establish a commitment to the project at all levels within BLM.” “To scope out the key elements of project management.” “To get started.” “To seek public involvement.” “To orient the process on problems/multiple- uses conflicts to be addressed in detail.” “To focus attention on the critical tradeoffs.” “To ask the questions that must be answered.” “To provide sideboards/constrai nts on issues to be addressed.” “To guide development of the RMP.” “To define the scope of the analysis.” “To provide essential facts for making analysis, evaluations, and decisions.” “To describe existing environmental elements and socio-economic conditions.” “To describe current BLM management.” “To determine ability of public lands to respond to the issues and concerns.” “To identify management opportunities and limitations.” P R O D U C T S “A ‘contact’ or Preplanning analysis that includes project support requirements, public participation, plan schedules, team make-up, budget, and training needs.” “A Federal Register Notice.” “Media announcements. ” “Letters to mailing list.” “A clear statement of a manageable number of significant issues for internal tracking, review, and inclusion in the RMP.” “A complete list for use by interdisciplinary team during process.” “A summary for public review (usually with the issues in newsletter or other form) and inclusion in RMP.” “A collection of data in various forms from all sources: old planning documents, digital data, new inventory results, resource program data and other source material.” “This may be a shelf document or part of the RMP; usually 3 parts are included.” “Resource Area Profile or the Affected Environment Chapter.” “Existing Management Situation or ‘No Action’ alternative.” “Capability Analysis as building blocks for other alternatives.” 5 6 7 8 9 Process Phase ALTERNATIVE FORMULATION ESTIMATION OF EFFECTS SELECT ALTERNATIVE SELECT THE RMP MONITORING AND EVALUATION P U R P O S E “To portray a mix of multiple uses and actions which could resolve the issues and address concerns.” “To identify full range of options.” “To provide different answers to the planning questions.” “To describe potential impacts and changes that would occur with each alternative.” “To identify ways to avoid or mitigate the adverse impacts.” “To identify which alternative best resolves the issues.” “To clearly explain the course of the action BLM proposes to take.” “To provide the opportunity for public review and comment.” “To select the proposed RMP and approve it considering public review and comment.” “To document the decision.” “To track implementation of action plan decisions.” “To help keep the RMP current.” “To determine if implementation is successful in meeting RMP objectives.” “To assess whether the RMP continues to reflect the best resource management decisions.” P R O D U C T S “Descriptions of several comprehensive management alternatives, each of which could be a complete plan.” “Together with the ‘No Action’ alternative (see phase 4), this makes up the alternatives Chapter of the RMP.” “The Environmental Consequences Chapter of the RMP.” “The description of the Preferred Alternative and the rationale for its selection.” “The Draft RMP/Draft EIS.” “The Proposed RMP/Final EIS. Record of public comment, Governor’s review, protests and responses.” “The Approved RMP and Record of Decision.” “A monitoring plan that describes the standards, methods and intervals for monitoring and evaluating the RMP.” “The documented results of monitoring including the data and analysis leading to any decision to modify the RMP through plan maintenance, amendment, or preparation of a new plan.” Exhibit 1, Page 3 Case 1:16-cv-00912-WJ-KBM Document 19-1 Filed 11/09/16 Page 4 of 4 Exhibit 2 Case 1:16-cv-00912-WJ-KBM Document 19-2 Filed 11/09/16 Page 1 of 5 Form 1221-2 (June 1969) UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT MANUAL TRANSMITTAL SHEET Release 3-337 Date 2/18/13 Subject 3120 – COMPETITIVE LEASES (P) 1. Explanation of Material Transmitted: This release transmits a revised Manual Section which sets forth the policy and procedures required for competitive oil and gas leasing in accordance with the Federal Onshore Oil and Gas Leasing Reform Act of December 22, 1987, and the regulations in the Competitive Leases Rule, 43 CFR Subpart 3120 (2011). 2. Reports Required: None. 3. Materials Superseded: The Manual pages superseded are listed under “REMOVE” below. All other expired directives applicable under the Subject Function Code 3120 which have been issued since enactment of the Federal Onshore Oil and Gas Leasing Reform Act have been appropriately incorporated into this Manual Section. 4. Filing Instructions: File as directed below. REMOVE: INSERT All of 3120 (Rel. 3-280, 11/26/93) 3120 (Total: 16 Sheets) Michael D. Nedd Assistant Director Minerals and Realty Management Exhibit 2, Page 1 Case 1:16-cv-00912-WJ-KBM Document 19-2 Filed 11/09/16 Page 2 of 5 MS-3120 COMPETITIVE LEASES (P) BLM MANUAL Rel. 3-337 Supersedes Rel. 3-281 2/18/13 .4 .4 Lease Sale Parcel Review Process. .41 General. A. Purpose. The lease parcel review process determines the availability and conditions under which leasing and eventual development should occur if allowed to proceed. The goal of the process is to: (1) determine parcel availability; (2) evaluate existing stipulations; (3) identify new stipulations, if applicable; (4) provide for public involvement; and (5) develop detailed background information for the NEPA compliance process. B. Parcel Review Timeframes. State offices will continue to hold lease sales four times per year, as required by the Mineral Leasing Act, Section 226(b)(1)(A), and 43 CFR 3120.1-2(a), when eligible lands are determined by the state office to be available for leasing. However, state offices will develop a sales schedule with an emphasis on rotating lease parcel review responsibilities among field offices throughout the year (as needed) to balance the workload and to allow each field office to devote sufficient time and resources to implementing the parcel review policy. C. Public Participation. State and field offices will provide for public participation as part of the review of parcels identified for potential leasing through the NEPA compliance documentation process. State and field offices will identify groups and individuals having an interest in local BLM oil and gas leasing, including surface owners of split estate lands where Federal minerals are being considered for leasing. Interested groups, individuals, and potentially affected split estate surface owners will be kept informed of field office leasing and NEPA activities through updated Web sites and email lists, and will be invited to comment during the NEPA compliance process. .42 State Office Parcel Review. A. Initial Review. The state office will conduct an initial review to confirm the availability of lands for competitive listing. The preliminary parcel sale list will be sent to the field office for review and confirmation. B. Request for Environmental Compliance Documentation. The state office will request the NEPA compliance documentation from the field office. Exhibit 2, Page 2 Case 1:16-cv-00912-WJ-KBM Document 19-2 Filed 11/09/16 Page 3 of 5 MS-3120 COMPETITIVE LEASES (P) BLM MANUAL Rel. 3-337 Supersedes Rel. 3-281 2/18/13 .43 .43 Field Office Parcel Review. A. Interdisciplinary Review. Field offices will form an Interdisciplinary Parcel Review Team (IDPR Team) of resource specialists to review lease sale parcels and ensure land use plan conformance and compliance with NEPA and other legal and policy requirements. The IDPR Team will include subject matter experts for the resources potentially affected by leasing. When appropriate, the IDPR Team should consider including staff specialists from other agencies when lands and/or resources that are administered by those agencies could be impacted by future development on the lease parcels under review. The IDPR Teams responsibilities will include:  Gathering and Assessing Existing Information  Ensuring Plan Conformance and Adequacy  Considering Program-Specific Guidance  Conducting Parcel Site Visits  Performing Internal and External Coordination  Performing NEPA Compliance Documentation  Providing for Public Participation and a 30-day Public Comment Period B. Leasing Recommendation. The Field Manager or District Manager will forward the finalized Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) (or finalized Determination of NEPA Adequacy (DNA), if appropriate) and a recommendation for each parcel reviewed to the State Director. The state office will post the NEPA compliance documentation on their leasing Web site and make the documentation available in the Information Access Center (formally known as the public room). Exhibit 2, Page 3 Case 1:16-cv-00912-WJ-KBM Document 19-2 Filed 11/09/16 Page 4 of 5 MS-3120 COMPETITIVE LEASES (P) BLM MANUAL Rel. 3-337 Supersedes Rel. 3-281 2/18/13 .5 .5 Notice of Competitive Lease Sale. .51 General. A. Contents of Notice. The Notice of Competitive Lease Sale must contain a legal land description of each lease parcel being offered for oral auction, identification of the stipulations for each parcel, and all other pertinent, specific information concerning unique factors applicable to each parcel and the Web site address of the NEPA compliance documentation. The sale notice also must state the time, date, and place of the competitive sale and all information on the terms and conditions of the leases, including the form of remittance required, rental and royalty rates, and bid and lease forms (see Handbook 3120-1, Section II). B. Applicable Stipulations. The sale notice must contain the complete language of each stipulation that is applicable to each of the parcels being offered at the oral auction. The language of each information notice applicable to a lease parcel also is to be included in the sale notice. .52 Posting of Notice. The Notice of Competitive Lease Sale must be officially posted in the Information Access Center of the BLM state office having jurisdiction over the lands at least 90 calendar days prior to conducting a competitive auction. Each sale notice will include a link to the NEPA compliance documentation. The sale notice will also be made available for the public on the external Web site and will provide applicable lease sale information. The sale notice will also be made available for posting at all surface management agencies having jurisdiction over any of the lands included in the auction, including each BLM district office and field office. The sale notice is not to be published in the Federal Register, and publication in oil and gas journals or other similar publications is not required (see Handbook 3120-1, Section II). Paper copies of the sale notice must be made available to the public for the specified cost recovery rate. However, on the day of the sale, at the sale location, copies of the sale notice will be made available without charge. .53 Protests. A 30-day protest period will begin the day the sale notice is posted. The posting of the sale notice will provide the state and field offices with at least 60 days to review protests before the oil and gas lease sale. Protests that are not resolved do not prevent bidding on protested parcels at the auction. State offices should attempt to resolve protests before the sale of the protested parcels. State offices should be confident that the protests will be resolved and the leases issued within 60 days after receipt of the balance of monies owed prior to offering the parcels for sale. Exhibit 2, Page 4 Case 1:16-cv-00912-WJ-KBM Document 19-2 Filed 11/09/16 Page 5 of 5 Exhibit 3 Case 1:16-cv-00912-WJ-KBM Document 19-3 Filed 11/09/16 Page 1 of 4 Form 1221-2 (June 1969) UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT MANUAL TRANSMITTAL SHEET Release 3-338 Date 2/18/13 Subject H-3120-1 – COMPETITIVE LEASES (P) 1. Explanation of Material Transmitted: This release transmits a revised Handbook Section which sets forth the policy and procedures required for competitive oil and gas leasing in accordance with the Federal Onshore Oil and Gas Leasing Reform Act of December 22, 1987, and the regulations in Title 43 Code of Federal Regulations Part 3120. 2. Reports Required: None. 3. Materials Superseded: The Handbook pages superseded are listed under “REMOVE” below. Instruction Memorandum Nos. 95-164, 2003-131, 2005-176, 2007-068, 2009-123, 2009-184, 2010-099, 2012-076 and 2012-131 also are superseded. All other directives applicable under the Subject Function Code 3120 which have been issued since enactment of the Federal Onshore Oil and Gas Leasing Reform Act have been appropriately incorporated into this Manual Section. 4. Filing Instructions: File as directed below. REMOVE: INSERT: All of H-3120-1 (Rel. 3-281, 11/26/93) H-3120-1 (Total: 159 Sheets) Mike Nedd Assistant Director Minerals and Realty Management Exhibit 3, Page 1 Case 1:16-cv-00912-WJ-KBM Document 19-3 Filed 11/09/16 Page 2 of 4 9 H-3120-1 – COMPETITIVE LEASES (P) BLM MANUAL Rel. 3-338 Supersedes Rel. 3-281 2/18/13 Responsible Official Step Action Keywords Adjudication 30a. A 30-day public comment period of the DNA or EA and unsigned Finding of No Significant Impact (FONSI). 30b. Reviews for sage-grouse screening, master leasing plans, wild land inventories, etc. Field Office 30c. The field office will ensure that the required stipulations/notices are included on each parcel. 30d. The field office will provide a delete/ defer memo to be concurred with by the Deputy State Director (DSD). The field or district office will forward to the State Director the finalized EA and unsigned FONSI (or finalized DNA, if appropriate) and a recommendation for each parcel that had been reviewed. This recommendation is not an appealable or protestable decision. Field office recommendations may include:  Offering a lease parcel with standard stipulations only.  Offering a lease parcel with existing, revised, and/or new stipulations.  Offering a lease parcel with modification of parcel boundaries.  Deferring a lease parcel from leasing, in whole or in part, pending further evaluation of specified issues. Exhibit 3, Page 2 Case 1:16-cv-00912-WJ-KBM Document 19-3 Filed 11/09/16 Page 3 of 4 10 H-3120-1 – COMPETITIVE LEASES (P) BLM MANUAL Rel. 3-338 Supersedes Rel. 3-281 2/18/13 Responsible Official Step Action Keywords Field Office 30d. (cont.)  Withholding a lease parcel from offering in an area that is already closed in the existing resource management plan.  Withholding a lease parcel from offering, in whole or in part.  Withholding a lease parcel from offering, in whole or in part, and initiating a plan amendment to close the area to future leasing. Adjudication 31. Review the stipulations submitted for each parcel for compliance with Manual Section 3101, and the Uniform Format for Oil and Gas Lease Stipulations (1989, Rocky Mountain Regional Coordinating Committee) or latest policy (see Illustration 5). REVIEW STIPULATIONS 32. Request the status of any unplugged wells or units/CAs from field office operations staff. UNITS/CAs AND UNPLUGGED WELLS REPORT 33. Reconfirm SMA consent or lack of objection to leasing, when required. (see Manual Section 3101 and Handbook 3101-1 concerning coordination with and consent requirements for SMAs.) SMA CONSENT 33a. Obtain a leasing recommendation and stipulations from the Forest Service for both public domain and acquired minerals parcels within their administrative boundary. 33b. Obtain consent and stipulations to lease from any other SMAs (Department of Defense, Bureau of Reclamation, etc.) Exhibit 3, Page 3 Case 1:16-cv-00912-WJ-KBM Document 19-3 Filed 11/09/16 Page 4 of 4 Exhibit 4 Case 1:16-cv-00912-WJ-KBM Document 19-4 Filed 11/09/16 Page 1 of 5 U.S. Crude Oil and Natural Gas Production in Federal and Nonfederal Areas Marc Humphries Specialist in Energy Policy June 22, 2016 Congressional Research Service 7-5700 www.crs.gov R42432 Exhibit 4, Page 1 Case 1:16-cv-00912-WJ-KBM Document 19-4 Filed 11/09/16 Page 2 of 5 U.S. Crude Oil and Natural Gas Production in Federal and Nonfederal Areas Congressional Research Service Summary A number of legislative proposals designed to increase domestic energy supply, enhance security, and/or amend the requirements of environmental statutes that apply to energy development are before the 114 th Congress. Proposals range from leasing primarily in the Gulf of Mexico Outer Continental Shelf (OCS) via the Proposed Five-Year Program (PP) for FY2017-FY2022 or to implement the Proposed Draft for FY2010-FY2015 (a plan prepared by the Bush Administration), to a proposal to prohibit new fossil fuel leases on federal land. Several proposals include new revenue sharing provisions for coastal states. A key question in this discussion is how much oil and gas is produced in the United States each year and how much of that comes from federal versus nonfederal areas. Oil production has fluctuated on federal lands over the past 10 fiscal years but has increased dramatically on nonfederal lands. Nonfederal crude oil production has rapidly increased in the past few years, partly due to better extraction technology, favorable geology, and the ease of leasing, more than doubling daily production between FY2006 and FY2015 (although because of recent low oil prices, production has dropped somewhat since a peak in mid-2015). The federal share of total U.S. crude oil production fell from its peak at nearly 36% in FY2010 to 21% in FY2015. Natural gas production in the United States overall dramatically increased each year since 2006, in contrast, production on federal lands declined each year from FY2007 through FY2014. There was a small increase of 3.5% in FY2015 over FY2014. Much of the decline can be attributed to offshore production falling by over 50%. Onshore production declines were less dramatic. Federal natural gas production fluctuated around 30% of total U.S. production for much of the 1980s through the early 2000s, after which there began a steady decline through 2015. This picture of natural gas production is much different than that of federal crude oil in that federal natural gas had accounted for a much larger portion of total U.S. natural gas over the past few decades. Another major issue that Congress may address is streamlining the processing of applications for permits to drill (APDs). Some Members contend that this would be one way to help boost energy production on federal lands. After a lease has been obtained, either competitively or noncompetitively, an application for a permit to drill must be approved for each oil and gas well. It took an average of 307 days for the Bureau of Land Management (BLM) to process (approve or deny) an onshore APD in FY2011, but that has declined to an average of 220 days in FY2015 (up from 194 days in FY2013). The BLM stated in its annual budget justifications (FY2012 and FY2016) that overall processing times per APD rose to such high levels in FY2011 and other years because of the complexity of the process, but they expect shorter timeframes in the future. The Energy Policy Act of 2005 (EPACT ’05, P.L. 109-58) included a provision to initiate and fund a pilot program at seven Bureau of Land Management (BLM) field offices in an effort to streamline the permitting process for oil and gas leases on federal lands. Funding for the pilot program was made permanent under the FY2016 National Defense Authorization Act (P.L. 114- 92). Exhibit 4, Page 2 Case 1:16-cv-00912-WJ-KBM Document 19-4 Filed 11/09/16 Page 3 of 5 U.S. Crude Oil and Natural Gas Production in Federal and Nonfederal Areas Congressional Research Service 10 Fiscal Year New APDs Received Total APDs Processed APDs Pending at Year-End 2008 7,884 7,846 5,638 2007 8,370 8,964 5,600 2006 10,492 8,854 6,194 Source: DOI/ BLM, FY2016 Budget Justification for years FY2011-FY2016. For earlier years, see DOI, Oil and Gas Utilization, Onshore and Offshore, May 2012 It took an average of 307 days for the BLM to process (approve or deny) an APD in FY2011, but that declined to an average of 220 days in FY2015 (up from 194 days in FY2013). 23 The BLM stated in its annual budget justifications for FY2012 and FY2016 that overall processing times per APD rose to such high levels in FY2011 and other years because of the complexity of the process, but they expect shorter timeframes in the future. Some critics of this lengthy timeframe highlight the relatively speedy process for permit processing on private and state lands. However, crude oil and gas development on federal lands takes place in a wholly different regulatory framework than that of development on private lands. 24 State agencies permit drilling activity on private lands within their states, with some approving permits within 10 business days of submission. This faster approval rate does not necessarily diminish the additional work required by the state to address other state requirements. But often, some surface management issues are negotiated between the producer and the individual land/mineral owner. A private land versus federal land permitting regime does not lend itself to an “apples-to-apples” comparison. Concerns over Nonproducing Leases A number of concerns may arise in the oil and gas leasing process that could delay or prevent oil and gas development from taking place, or might account for the relatively large number of leases held in nonproducing status. It should be noted that many leases expire without exploration or production ever occurring. Below is a list of issues and practices which, individually or in combination, are often cited by various stakeholders to explain why more leases are not producing.  Rig or equipment availability, particularly offshore;  Oil and natural gas prices;  High capital costs and available capital;  Skilled labor shortages;  Leases in the development cycle (e.g., conducting environmental reviews, permitting, or exploring) but not producing; 23 Bureau of Land Management, “Average Application for Permit to Drill (APD) Approval Timeframes: FY2005- FY2015,” http://www.blm.gov/wo/st/en/prog/energy/oil_and_gas/statistics/apd_chart.html. 24 Under the Federal Land Policy and Management Act (FLPMA), Resource Management Plans or Land Use Plans (43 U.S.C. 1712) are required for tracts or areas of public lands prior to development. The Bureau of Land Management (BLM) must consider environmental impacts during land-use planning when RMPs are developed and implemented. RMPs can cover large areas, often hundreds of thousands of acres across multiple counties. Through the land-use planning process, the BLM determines which lands with oil and gas potential will be made available for leasing. Exhibit 4, Page 3 Case 1:16-cv-00912-WJ-KBM Document 19-4 Filed 11/09/16 Page 4 of 5 U.S. Crude Oil and Natural Gas Production in Federal and Nonfederal Areas Congressional Research Service 11  Legal challenges that might delay or prevent development;  No commercial discovery on a lease tract;  Holding leases (because of the lack of capital or as “speculators”) to sell or “farm out” at a later date;  Ability to secure extensions on nonproducing leases;  Ability to secure and being able to hold large number of lease tracts, often contiguous, to maximize return on investment; and  The potential for inadequate coordination between the Department of the Interior’s lease management and regulatory agencies (Bureau of Ocean Energy Management and Bureau of Safety and Environmental Enforcement) and other federal agencies to ensure protection of federal areas encompassing coastal and marine sanctuaries. Streamline Pilot EPAct ’05 also included a provision to initiate and fund a pilot program at seven BLM field offices in an effort to streamline the permitting process for oil and gas leases on federal lands. Initial results from the pilot project were published according to the timetable required by EPAct ’05 (within three years after enactment). The conclusion was that the pilot made a difference in improving the processing times for APDs at the pilot offices overall and increased the number of environmental inspections. The BLM noted that the National Environmental Policy Act (NEPA) processing time for APDs and rights of way (ROW) applications fell from 81 to 61 days or roughly 25% due to “colocation” of agency staff. BLM reported that the number of environmental inspections went up by 78% from FY2006 to FY2007. 25 The BLM reported mixed results at the specific field offices. While some of the offices processed more permits in 2007 than they did in 2005, all the pilot sites reported more completed environmental inspections. 26 Funding for the pilot program was made permanent under the FY2016 National Defense Authorization Act (P.L. 114-92). Author Contact Information Marc Humphries Specialist in Energy Policy mhumphries@crs.loc.gov, 7-7264 25 Bureau of Land Management, BLM Year Two Report, Section 365 of the Energy Policy Act of 2005 Pilot Project to Improve Federal Permit Coordination, February 2008. 26 Ibid. Exhibit 4, Page 4 Case 1:16-cv-00912-WJ-KBM Document 19-4 Filed 11/09/16 Page 5 of 5 Exhibit 5 Case 1:16-cv-00912-WJ-KBM Document 19-5 Filed 11/09/16 Page 1 of 3 Cushing, OK WTI Spot Price FOB (Dollars per Barrel) Worksheet Name Description # Of Series Frequency Latest Data for Cushing, OK WTI Spot Price FOB (Dollars per Barrel) 1 Monthly 9/2016 Release Date: 10/26/2016 Next Release Date: 11/2/2016 Excel File Name: rwtcm.xls Available from Web Page: http://tonto.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=RWTC&f= M Source: For Help, Contact: infoctr@eia.doe.gov (202) 586-8800 10/26/2016 10:55:50 AM 0 20 40 60 80 100 120 Au g‐ 20 10 N ov ‐2 01 0 Fe b‐ 20 11 M ay ‐2 01 1 Au g‐ 20 11 N ov ‐2 01 1 Fe b‐ 20 12 M ay ‐2 01 2 Au g‐ 20 12 N ov ‐2 01 2 Fe b‐ 20 13 M ay ‐2 01 3 Au g‐ 20 13 N ov ‐2 01 3 Fe b‐ 20 14 M ay ‐2 01 4 Au g‐ 20 14 N ov ‐2 01 4 Fe b‐ 20 15 M ay ‐2 01 5 Au g‐ 20 15 N ov ‐2 01 5 Fe b‐ 20 16 M ay ‐2 01 6 Au g‐ 20 16 Dollars/Barrel Exhibit 5, Page 1 Case 1:16-cv-00912-WJ-KBM Document 19-5 Filed 11/09/16 Page 2 of 3 Data Month Dollars/barrel Month Dollars/barrel Aug-2010 76.6 May-2014 102.18 Sep-2010 75.24 Jun-2014 105.79 Oct-2010 81.89 Jul-2014 103.59 Nov-2010 84.25 Aug-2014 96.54 Dec-2010 89.15 Sep-2014 93.21 Jan-2011 89.17 Oct-2014 84.4 Feb-2011 88.58 Nov-2014 75.79 Mar-2011 102.86 Dec-2014 59.29 Apr-2011 109.53 Jan-2015 47.22 May-2011 100.9 Feb-2015 50.58 Jun-2011 96.26 Mar-2015 47.82 Jul-2011 97.3 Apr-2015 54.45 Aug-2011 86.33 May-2015 59.27 Sep-2011 85.52 Jun-2015 59.82 Oct-2011 86.32 Jul-2015 50.9 Nov-2011 97.16 Aug-2015 42.87 Dec-2011 98.56 Sep-2015 45.48 Jan-2012 100.27 Oct-2015 46.22 Feb-2012 102.2 Nov-2015 42.44 Mar-2012 106.16 Dec-2015 37.19 Apr-2012 103.32 Jan-2016 31.68 May-2012 94.66 Feb-2016 30.32 Jun-2012 82.3 Mar-2016 37.55 Jul-2012 87.9 Apr-2016 40.75 Aug-2012 94.13 May-2016 46.71 Sep-2012 94.51 Jun-2016 48.76 Oct-2012 89.49 Jul-2016 44.65 Nov-2012 86.53 Aug-2016 44.72 Dec-2012 87.86 Sep-2016 45.18 Jan-2013 94.76 Feb-2013 95.31 Mar-2013 92.94 Apr-2013 92.02 May-2013 94.51 Jun-2013 95.77 Jul-2013 104.67 Aug-2013 106.57 Sep-2013 106.29 Oct-2013 100.54 Nov-2013 93.86 Dec-2013 97.63 Jan-2014 94.62 Feb-2014 100.82 Mar-2014 100.8 Apr-2014 102.07 Exhibit 5, Page 2 Case 1:16-cv-00912-WJ-KBM Document 19-5 Filed 11/09/16 Page 3 of 3