FILED United States Court of Appeals Tenth Circuit PUBLISH September 5, 2012 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
IMPACT ENERGY RESOURCES, LLC; PEAK ROYALTY HOLDINGS, LLC; QUESTAR EXPLORATION AND PRODUCTION COMPANY; UINTAH COUNTY; CARBON COUNTY; DUCHESNE COUNTY,
Plaintiffs–Appellants,
v.
KEN SALAZAR, in his official capacity as Secretary of the Department of the Interior; UNITED STATES DEPARTMENT OF THE INTERIOR; KENT HOFFMAN, in his official capacity as Deputy State Director for Nos. 11-4043 & 11-4057 Minerals, Utah Bureau of Land Management of the Department of the Interior; UNITED STATES BUREAU OF LAND MANAGEMENT, Utah State Office,
Defendants–Appellees.
NATIONAL PARKS CONSERVATION ASSOCIATION; NATIONAL TRUST FOR HISTORIC PRESERVATION; SOUTHERN UTAH WILDERNESS ALLIANCE; NATURAL RESOURCES DEFENSE COUNCIL; WILDERNESS SOCIETY; SIERRA CLUB; UTAH RIVERS COUNCIL; GREAT OLD BROADS FOR WILDERNESS; GRAND CANYON TRUST,
Defendants–Intervenors– Appellees.
RED ROCK FORESTS,
Defendant–Intervenor,
------------------------------
WESTERN ENERGY ALLIANCE,
Amicus Curiae.
Appeal from the United States District Court for the District of Utah (D.C. No. : 2:09-CV-00435-DB)
Michael L. Beatty, Beatty & Wozniak, P.C. Denver, Colorado, and Mark Ward, Utah Association of Counties, Murray, Utah, (Robert S. Thompson, III, Beatty & Wozniak, P.C., Denver, Colorado, on the briefs) for the Plaintiffs-Appellants.
Robin Cooley, Earthjustice, Denver, Colorado (Steven Bloch and David Garbett, Southern Utah Wilderness Alliance on the briefs), for the Defendants-Intervenors- Appellees.
Vivian H.W. Wang, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., (Ignacio S. Moreno, Assistant Attorney General, David C. Shilton, Tyler Welti, and Charles R. Scott, United States Department of Justice, on the brief) for Defendants-Appellees.
Kent Holsinger and Laura L. Chartrand, Holsinger Law, LLC, Denver, Colorado, filed a brief for Amicus Curiae Western Energy Alliance on behalf of Plaintiffs-Appellants.
Before LUCERO, SEYMOUR, and TYMKOVICH, Circuit Judges.
-2- PER CURIAM.
Appellants in this case are companies that submitted high bids on certain oil and
gas leases at a Bureau of Land Management (“BLM”) auction (collectively, the “Energy
Companies”). After the auction but before the leases were issued, newly appointed
Secretary of the Interior Ken Salazar decided not to lease the parcels at issue. Salazar
announced his decision at a February 4, 2009, press conference and memorialized his
determination in a February 6 memorandum to the BLM’s Utah State Director. On
February 12, 2009, a subordinate BLM official mailed letters to the high bidders
indicating that the leases would not be issued. Exactly ninety days later, the Energy
Companies filed suit challenging the Secretary’s authority to withdraw the leases. The
district court dismissed their suit as time-barred under the Mineral Leasing Act (“MLA”),
which provides that “[n]o action contesting a decision of the Secretary involving any oil
and gas lease shall be maintained unless such action is commenced or taken within ninety
days after the final decision of the Secretary relating to such matter.” 30 U.S.C. § 226-2.
A majority of the panel agrees with the district court that the Secretary’s final
decision in this matter occurred no later than February 6, and thus, the suit is time-barred.
As explained in their separate concurrences, however, the panel majority would employ
somewhat differing analyses in reaching this result. Judge Lucero would hold that under
the plain text of the MLA, the Secretary’s decision was final on February 6 regardless of
whether plaintiffs’ claims under the Administrative Procedure Act (“APA”) had accrued
-3- at that time. Judge Seymour would hold that the word “final” bears the same meaning in
the phrase “final decision of the Secretary,” 30 U.S.C. § 226-2, as it does in the phrase
“final agency action” under the APA, 5 U.S.C. § 704, and that final agency action
occurred no later than February 6. Judge Tymkovich agrees with Judge Seymour’s
conclusion that final agency action is necessary, but disagrees with the majority’s
conclusion that the suit is time-barred as explained in his dissent.
The panel majority also agrees with the district court that the Energy Companies
are not entitled to equitable tolling in this matter. The BLM notified the high bidders just
six days after the Secretary made his decision. And the government notified the Energy
Companies of its position that February 6 was the operative date during agency
proceedings. Although the Energy Companies had time to prepare their claims before the
limitations period expired, they gambled that a court would accept their proffered
limitations theory. Equitable tolling is not required under these circumstances.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
On November 4, 2008, the BLM announced that it would hold a competitive
auction of oil and gas leases on certain federal lands in Utah. The auction was scheduled
for December 19, 2008. The National Park Service objected to the decision to lease
many of the parcels, and after consulting with that agency, the BLM revised its auction to
include 132 rather than 241 parcels as originally planned.
Several environmental organizations, including intervenor Southern Utah
-4- Wilderness Alliance (“SUWA”), filed administrative protests of the proposed lease sales.
The notice of auction informed potential bidders that the BLM could not actually issue
any leases until such protests were resolved. It stated that protested leases would
nonetheless be auctioned and that the high bidder would be refunded any monies paid in
the event that a parcel was withdrawn as a result of an administrative protest. Shortly
before the scheduled auction, SUWA and other conservation groups filed suit in the D.C.
District Court seeking to halt the planned sale. See S. Utah Wilderness Alliance v.
Allred, 2009 U.S. Dist. LEXIS 30664, at *4 (D.D.C. Jan. 17, 2009) (unpublished).
On December 19, 2008, the auction went forward as planned and the BLM
accepted bids on 116 lease parcels. The Energy Companies were recognized as high
bidders for several of these parcels—thirty-six of which are located in counties that were
also parties to this action below. Subsequently, the BLM recognized the appropriate high
bidders and accepted payment for the parcels, with the express caveat that the leases
could not actually be issued until all protests were resolved.
On January 17, 2009, the D.C. District Court granted a temporary restraining order
prohibiting the BLM from issuing leases on 77 parcels, including those for which the
appellants were the highest bidders. See S. Utah Wilderness Alliance, 2009 U.S. Dist.
LEXIS 30664, at *9. It found that the environmental groups were likely to succeed on
their claims under the National Environmental Policy Act (“NEPA”) because the
government did not conduct a proper air quality analysis. Id. at *7. The court further
concluded that the environmental groups were likely to prevail on their National Historic
-5- Preservation Act and Federal Land Policy and Management Act (“FLPMA”) claims
because the BLM failed to consider impacts on historic resources. Id. The court made
the restraining order effective “until further order of the court” and ordered the parties to
submit briefing on a preliminary injunction. Id. at *9.
Newly-appointed Secretary of the Interior Ken Salazar essentially mooted the D.C.
District Court dispute shortly thereafter. On February 4, 2009, he held a press conference
to announce that the 77 parcels subject to the temporary restraining order would not be
leased. He stated: “I have directed [the BLM] not to accept bids on the 77 parcels” and
that the “effect will be immediate . . . . This is a directive to the BLM therefore the lease
process will not go forward.” He further explained, “[W]hat essentially I have done is to
have removed the 77 parcels from the consummation of a lease.” On the same day, the
Department of the Interior issued a press release announcing Salazar’s decision on its
website, stating:
In its last weeks in office, the Bush Administration rushed ahead to sell oil and gas leases at the doorstep of some of our nation’s most treasured landscapes in Utah. We need to responsibly develop our oil and gas supplies to help us reduce our dependence on foreign oil, but we must do so in a thoughtful and balanced way that allows us to protect our signature landscapes and cultural resources . . . . We will take a fresh look at these 77 parcels and at the adequacy of the environmental review and analysis that led to their being offered for oil and gas development. I am also concerned that there was inadequate consultation with other agencies, including the National Park Service.
The announcement was covered extensively in both the regional and national press. See,
e.g., Amy Joi O’Donoghue, Salazar Halts Sale of Utah Oil, Gas Leases, Deseret News,
Feb. 5, 2009; Mark Jaffe, Utah Energy Leases Halted, Denver Post, Feb. 5, 2009; Leslie -6- Kaufman, Interior Secretary Cancels Drilling Leases on Public Lands in Utah, N.Y.
Times, Feb. 5, 2009.
The following day, February 5, the federal defendants in the D.C. District Court
case filed an unopposed motion to stay briefing on the preliminary injunction question.
They stated: “On February 4, 2009, Ken Salazar . . . directed the BLM not to accept the
bids on the 77 parcels that are the subject of this Court’s temporary restraining order.
Accordingly, those leases will not be issued.” When this motion was filed, Carbon
County—a plaintiff in the action at bar—was a party in that case. Several attorneys that
now represent the Energy Companies had entered an appearance and also received this
filing.
Also on February 5, the BLM’s Utah State Director issued an “Information
Memorandum for the Secretary.” The memo stated, “On February 4, 2009, Secretary of
the Interior Ken Salazar announced the decision to withdraw oil and gas leases offered on
77 parcels . . . . A written decision withdrawing the leases will be needed to document
the process.” The State Director indicated that once her office received the “officially
documented decision from the Secretary,” it would begin the process of refunding the
payments received from winning bidders.
Secretary Salazar signed and issued a memo to the BLM’s Utah State Director the
following day, February 6, stating:
There has been considerable controversy surrounding this lease sale, including questions about the degree of coordination between the BLM and other Federal agencies, including the National Park Service, and the adequacy of the environmental review and analysis performed in -7- connection with certain parcels as well as the underlying Resource Management Plans. . . . Given the concerns about the adequacy of the consideration[,] . . . I am directing you to withdraw the 77 parcels that were covered by the January 17, 2009, Temporary Restraining Order from further consideration in this lease sale.
In accordance with applicable laws, regulations, and agency procedures, please take all necessary actions to effectuate this withdrawal, including promptly notifying the high bidders and returning any monies received by BLM in connection with these 77 parcels.
This transmittal was not made immediately public.
On February 12, 2009, the BLM’s Utah Deputy State Director sent letters via
certified mail to the high bidders on the 77 leases explaining that the parcels had been
withdrawn. The letters state that “Ken Salazar has directed the BLM to withdraw these
parcels from the December 19, 2008 Oil and Gas Lease Sale.” They also authorized a
refund of the bidders’ payments.
The Energy Companies attempted to appeal the lease withdrawals by filing an
administrative appeal with the Interior Board of Land Appeals (“IBLA”) on March 13,
2009. See Robert L. Bayless Producer, 177 IBLA 83 (2009). The BLM filed a motion to
dismiss that appeal on March 23, 2009, on the ground that the IBLA lacks jurisdiction
over any decision “approved by the Secretary.” 43 C.F.R. § 4.410(a)(3) (withdrawing
IBLA authority if “a decision has been approved by the Secretary”). In its motion, the
BLM took the position that the appeal sought review of the “February 6, 2009 Decision
of the Secretary.” It states that “appellants attempt to appeal BLM’s February 12, 2009
letters. However, the BLM letters merely implement the Secretary’s February 6, 2009
decision to withdraw the subject parcels from further consideration in the December 19, -8- 2008 oil and gas lease sale.” The February 6 transmittal was attached to the motion.
The IBLA granted the motion and dismissed the appeal on April 9, 2009. Robert
L. Bayless Producer, 177 IBLA at 85. Its order of dismissal states: “On February 12,
2009, BLM issued decisions related to 53 of those parcels from which this appeal is
taken.” Id. at 84. However, the order acknowledged the BLM’s position that the agency
letters “merely implement the Secretary’s directive.” Id. The IBLA order characterizes
the appellants as expressing some confusion as to the relevant date, noting that “they
received no decisions other than those that BLM issued on February 12, so it was not
clear to them whether BLM’s decision or the Secretary’s February 6 memorandum was
final agency action under the Administrative Procedure Act.” Id. Because the Secretary
“specifically directed BLM to take a particular action,” the IBLA concluded it lacked
jurisdiction over the appeal. Id. The IBLA rejected appellants’ request for an “opinion
as to whether the Secretary’s memorandum constitutes ‘final’ administrative action for
purposes of judicial review” because it “do[es] not issue advisory opinions regarding
matters in an appeal that we have no authority to consider.” Id. at 85.
On May 13, 2009, appellants filed suit against Salazar, the Department of the
Interior, the BLM, and the BLM’s Deputy Director for Minerals in the District of Utah,
challenging the decision to withdraw the leases as violations of the MLA, APA, and
FLPMA. Several environmental groups intervened on behalf of the government.
The district court dismissed the action as time-barred. It concluded that the “final
decision of the Secretary” as that phrase is used in 30 U.S.C. § 226-2 was Salazar’s
-9- February 6 transmittal. And because plaintiffs did not file suit within ninety days of that
decision, they did not fit within the MLA’s limited waiver of sovereign immunity. The
court further concluded that plaintiffs were not entitled to equitable tolling and
accordingly entered judgment in favor of the defendants. The Energy Companies now
appeal.
II
We review a district court’s dismissal based on sovereign immunity de novo. See
Governor of Kan. v. Kempthorne, 516 F.3d 833, 841 (10th Cir. 2008). “Sovereign
immunity protects the United States and its agencies from being sued without their
consent.” Poche v. Joubran, 644 F.3d 1105, 1108 (10th Cir. 2011). “[T]he party
asserting jurisdiction bears the burden of proving that sovereign immunity has been
waived.” Sydnes v. United States, 523 F.3d 1179, 1183 (10th Cir. 2008) (citation
omitted).
Plaintiffs in this case invoke the limited waiver of sovereign immunity provided
for in the APA. Under that provision, aggrieved parties may challenge “[a]gency action
made reviewable by statute and final agency action for which there is no other adequate
remedy in a court.” 5 U.S.C. § 704. However, the APA prohibits review of agency
decisions “to the extent that . . . statutes preclude judicial review.” 5 U.S.C. § 701(a).
The MLA includes such a prohibition: “No action contesting a decision of the Secretary
involving any oil and gas lease shall be maintained unless such action is commenced or
taken within ninety days after the final decision of the Secretary relating to such matter.”
-10- 30 U.S.C. § 226-2. This statutory deadline constitutes “a condition to the waiver of
sovereign immunity and thus must be strictly construed.” Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 94 (1990).1
The Energy Companies ask that we look to several provisions of the APA in
determining when the limitations period began to run. First, they argue that the APA’s
notice provision supersedes the MLA’s statute of limitations such that the limitations
period began to run when they received actual notice of the Secretary’s decision. They
point to the APA’s requirement that “[p]rompt notice shall be given of the denial in
whole or in part of a written application, petition, or other request of an interested person
made in connection with any agency proceeding.” 5 U.S.C. § 555(e). They further note
that the “APA governs agency procedures in all administrative proceedings,” Friends of
the Bow v. Thompson, 124 F.3d 1210, 1214 (10th Cir. 1997), and that a statute cannot
supersede the APA “except to the extent that it does so expressly,” 5 U.S.C. § 559.
Neither the APA nor the MLA suggest that the latter’s statute of limitations is
bound by the former’s notice provision. Congress can, and often does, elect to begin a
limitations period when a party receives notice. See, e.g., 42 U.S.C. § 1395oo(f)(1)
(permitting “civil action commenced within 60 days of the date on which notice of any
1 In Geosearch, Inc. v. Hodel, 801 F.2d 1250, 1252 (10th Cir. 1986), we held that the MLA’s statute of limitations is jurisdictional. We overruled Geosearch on other grounds in Reppy v. Department of the Interior, 874 F.2d 728, 730 n.5 (10th Cir. 1989), noting that a recent Supreme Court case might undermine Geosearch’s jurisdictional holding. For purposes of this case, whether the statute of limitations is jurisdictional is immaterial because the government moved to dismiss based on the statute of limitations.
-11- final decision by the Board . . . is received”). But the MLA’s limitations period is not
notice-based. The MLA very clearly starts the clock on the date of “the final decision of
the Secretary,” 30 U.S.C. § 226-2, not when notice of that decision is received.
There is no textual basis to conclude that a violation of the APA’s notice
requirement warrants an alteration of another statute’s unambiguous limitations
provision. APA claims are generally covered by the six-year limitations period contained
in 28 U.S.C. § 2401(a). See Smith v. Marsh, 787 F.2d 510, 512 (10th Cir. 1986).
Consistent with the plain text of that statute of limitations, we have held that APA claims
must be brought within six years of the claim’s accrual rather than within six years of
notice.2 See id.; see also 28 U.S.C. § 2401 (actions against the United States must be
filed “within six years after the right of action first accrues”). In other words, the
limitations provision in 28 U.S.C. § 2401, not the APA’s notice provision, determines the
limitations start date in the usual APA case. The Energy Companies give us no reason to
treat the interaction of § 555(e) and the MLA’s statute of limitations differently. Notice
may be relevant to the issue of equitable tolling, see Part III infra, but it does not alter the
2 Accrual and actual notice dates are often identical, but diverge with some frequency. See, e.g., Sterlin v. Biomune Sys., 154 F.3d 1191, 1197 (10th Cir. 1998) (a limitations period did not begin “when a plaintiff has full knowledge of the existence of a claim” but “when a plaintiff is placed on ‘inquiry notice’” (quotations omitted)). In this case, for example, the Energy Companies argue that their claims accrued on February 12, when the BLM mailed its letters. But the Energy Companies presumably received those letters a day or two later.
-12- date the limitations period begins to run.3
The Energy Companies further argue that the MLA’s statute of limitations could
not have begun to run until the BLM engaged in “final agency action” under the APA.
See 5 U.S.C. § 704. They note that their claims arose under 5 U.S.C. § 704, and
accordingly could not have been filed until the final agency action requirement was
satisfied. They contend there was no final agency action until the BLM sent the February
12 letters notifying them that the leases had been withdrawn.
As noted supra, the panel majority disagrees that the statute of limitations did not
begin to run until the February 12 letters were sent. Rather, they agree that the
limitations period began to run by February 6. Judge Lucero would hold that the “final
decision of the Secretary” occurred on February 6 regardless of whether “final agency
action” also occurred on that date. Judge Seymour would construe the two phrases
synonymously, and would hold that both the Secretary’s decision and the agency action
3 The Energy Companies argue that the six-day delay between the Secretary’s decision and the mailing of the BLM’s notice letters violated their right to procedural due process. They raised this issue for the first time in a Rule 59 motion, and the district court declined to consider it, citing the rule that post-judgment motions are not appropriate vehicles to “advance arguments that could have been raised in prior briefing.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). We agree with the district court that the Energy Companies failed to raise this issue at the appropriate time and have thus waived appellate review. See Proctor & Gamble Co. v. Haugen, 222 F.3d 1262, 1270-71 (10th Cir. 2000) (appellate review waived “[w]hen an issue has not been properly raised below”).
-13- were final by February 6.4 Accordingly, we affirm the district court’s conclusion that the
Energy Companies’ suit is time-barred.
III
In addition to concluding that the Energy Companies’ suit was filed out of time, a
majority of the panel agrees that equitable tolling is not appropriate under the facts of this
case. The district court also concluded that the Energy Companies were not entitled to
equitable tolling. We review that determination for abuse of discretion. See Robinson v.
Golder, 443 F.3d 718, 720 (10th Cir. 2006). Equitable tolling is granted sparingly. We
have held that tolling is appropriate “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.” United States v. Clymore, 245 F.3d 1195, 1199 (10th
Cir. 2001) (quotation and alteration omitted).
In arguing that tolling is appropriate, the Energy Companies rely heavily on
Turner v. Watt, 566 F. Supp. 87 (D. Utah 1983). Their reliance, however, is misplaced.
The plaintiff in Turner sought to appeal the denial of his application for an oil and gas
lease under the MLA. Id. at 88. He filed an appeal with the IBLA but temporarily left
the country while the appeal was pending. Id. When the IBLA rejected his appeal, it
4 In his separate opinion, Judge Tymkovich agrees with Judge Seymour that the “final decision of the Secretary” was “final agency action” in this case, but does not agree that the decision became final before February 12.
-14- erroneously sent a notice to plaintiff’s previous address even though plaintiff had filed a
notice of change of address. Id. Plaintiff learned of the decision when he returned to the
country after the limitations period had expired. Id. The district court held: “Because of
the agency’s error, plaintiff did not receive notice of the board's final decision. He was
entitled to rely on the statute’s requirement that it be given, and the running of the period
for appeal should not begin until notice is sent in accordance with the statute.” Id. at 89.
To the extent the Turner court interpreted the MLA’s limitations period as
beginning when a party is notified of the Secretary’s decision, we reject such an
interpretation for the reasons stated in Part II: The plain text of the MLA does not permit
a notice-based construction. The Turner decision can be read, however, as tolling the
limitations period because plaintiff did not receive notice of the IBLA decision until after
the limitations period had run. In the event that an agency fails to notify a claimant of its
decision until after a limitations period has expired, equitable tolling would clearly be
appropriate. See Bowen v. New York, 476 U.S. 467, 481 (1986) (“Where the
Government’s secretive conduct prevents plaintiffs from knowing of a violation of rights,
statutes of limitations have been tolled until such time as plaintiffs had a reasonable
opportunity to learn the facts concerning the cause of action.” (quotation omitted)).
This case also differs from Turner in an important manner. In Turner, the plaintiff
did not learn of the decision until after his limitations period had expired due to agency
error. In this case, the agency promptly notified the Energy Companies of the Secretary’s
decision but a few days into the limitations period. We rejected a request for equitable
-15- tolling under similar circumstances in Pfannenstiel v. Merrill Lynch, Pierce, Fenner &
Smith, 477 F.3d 1155 (10th Cir. 2007). There, plaintiff was subject to a three-month
limitations period beginning on the date he received an arbitrator’s decision. Id. at 1158.
Two months into that term, he received notice that the arbitrator had lost all of the
evidence submitted in the proceeding. Id. at 1157. Plaintiff filed a claim beyond the
limitations period based on the lost evidence and we rejected his request for equitable
tolling because the plaintiff
could have served the defendants before the expiration of the three-month time limit. He had approximately one month left after he learned that the evidence was no longer available in order to timely file his motion to vacate, but he did not file it within that time period. The one-month time period provided [plaintiff] ample opportunity to serve the defendants in a timely fashion. Thus, equitable tolling does not apply.
Id. at 1158. Similarly, the D.C. Circuit routinely denies equitable tolling unless a delay in
notification “makes it impossible reasonably for the party to comply with the filing
statute.” Gardner v. FCC, 530 F.2d 1086, 1091 n.24 (D.C. Cir. 1976).
When the Energy Companies received notice that their leases would not be issued,
more than 80 days remained in their limitations periods. As in Pfannenstiel, they had
“ample opportunity” to file their claims in a timely manner. 477 F.3d at 1158. They do
not claim that the six-day delay between the Secretary’s decision and the BLM’s mailings
meaningfully limited their ability to comply with the MLA’s statute of limitations.
Despite their receipt of notice a few days into the limitations period, the Energy
Companies protest that they were unaware of the February 6 memo until it was served in
the IBLA appeal with 45 days remaining in the limitations period. We note that 45 days -16- is still longer than the thirty days approved in Pfannenstiel, but can certainly imagine a
case in which a plaintiff is made aware of a decision but kept in the dark as to the precise
date the decision was made. And we agree that equitable tolling might be appropriate if
such a plaintiff missed the filing deadline based on ignorance of the date of decision.
This hypothetical plaintiff would qualify for equitable tolling because he would have
“been lulled into inaction by a defendant.” Clymore, 245 F.3d at 1199.
In the case at bar, however, the government fully apprised the Energy Companies
of its position on the limitations period. In the IBLA proceedings, the government
explicitly stated that February 6 was the operative date. Consistent with this position, it
challenged the Energy Companies’ reliance on the February 12 letters, arguing that “the
BLM letters merely implement the Secretary’s February 6, 2009 decision to withdraw the
subject parcels.” The Energy Companies confessed confusion as to “whether BLM’s
decision or the Secretary’s February 6 memorandum was final,” Robert L. Bayless
Producer, 177 IBLA at 84, but the IBLA could not comment on that issue citing the bar
on “advisory opinions regarding matters in an appeal that we have no authority to
consider,” id. at 85.
Thus, it is undisputed that the government communicated to the Energy
Companies its position that February 6 was the date of the Secretary’s decision, and the
companies acknowledged the possibility that the government’s position would hold sway.
See id. at 84-85. Despite this knowledge, the Energy Companies gambled. They filed
suit exactly 90 days after February 12, risking their claims on the court’s acceptance of
-17- their limitations theory. This gamble did not pay off, and equitable tolling does not
forgive “a garden variety claim of excusable neglect.” Irwin, 498 U.S. at 96. We
conclude the district court appropriately exercised its discretion by denying equitable
tolling.
IV
For the foregoing reasons, the judgment of the district court is AFFIRMED.
-18-