Reppy v. Department of the Interior of the United States

874 F.2d 728, 1989 WL 47548
CourtCourt of Appeals for the Tenth Circuit
DecidedMay 10, 1989
DocketNo. 88-1437
StatusPublished
Cited by1 cases

This text of 874 F.2d 728 (Reppy v. Department of the Interior of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reppy v. Department of the Interior of the United States, 874 F.2d 728, 1989 WL 47548 (10th Cir. 1989).

Opinion

LOGAN, Circuit Judge.

Plaintiff William Reppy appeals the district court’s affirmance of a decision by the Interior Board of Land Appeals (IBLA) rejecting Reppy’s challenge to a denial of his oil and gas lease application for failure to comply with an administrative regulation. We affirm.1

Reppy was the successful drawee of an oil and gas lease in a random computer drawing conducted by the Wyoming State Office of the Bureau of Land Management (BLM) pursuant to an established leasing program. Reppy’s lease application subsequently was rejected by the BLM, however, for failure to disclose, as required by BLM regulation 43 C.F.R. § 3112.2-4, the name of the filing service that assisted him in preparing the application. On appeal the IBLA entered a decision upholding the BLM’s action on December 19, 1985. 90 I.B.L.A. 80 (1985). According to the record, Reppy filed a petition for reconsideration with the IBLA on January 6, 1986, and a revised petition for reconsideration on February 10, 1986.2 Reppy’s petition for reconsideration was denied on March 31, 1986. 91 I.B.L.A. 191 (1986). He then commenced the present action in district court on June 27, 1986, seeking review of the IBLA’s decision.

Initially, the defendants argue that Reppy’s request for judicial review was time-barred at the outset. The Mineral Lands Leasing Act provides:

“No action contesting a decision of the Secretary [of the Interior] 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; see also 43 C.F.R. § 3000.5. The Department of the Interior has supplemented § 226-2 by promulgating the following regulation:

“Finality of decision. No further appeal will lie in the Department from a decision of the Director or an Appeals Board of the Office of Hearings and Appeals. Unless otherwise provided by regulation, reconsideration of a decision may be granted only in extraordinary circumstances .... The filing and pendency of a request for reconsideration shall not operate to stay the effectiveness of the decision involved unless so ordered by the Director or an Appeals Board. A request for reconsideration need not be filed to exhaust administrative remedies.”

43 C.F.R. § 4.21(c) (emphasis added).3 Based on this statute and regulation, the defendants contend that because Reppy’s [730]*730suit was filed more than ninety days after the IBLA’s initial decision, the action was barred despite the timely filing of the petition for reconsideration.

If this court’s decision in Geosearch, Inc. v. Hodel, 801 F.2d 1250 (10th Cir.1986) (per curiam) (construing 30 U.S.C. § 226-2), was still viable, we would be compelled to agree with the defendants’ position. But after this court decided Geosearch, in the context of a different administrative scheme, the Supreme Court held that the timely filing of a petition for reconsideration stayed the running of the applicable limitations period for seeking judicial review of the agency’s action. See ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 284-85, 107 S.Ct. 2360, 2368-69, 96 L.Ed.2d 222, 237 (1987). The language of the controlling statute in that case, like that in 43 C.F.R. § 4.21(c) before us, declared that agency decisions were final for purposes of judicial review despite the pendency of reconsideration motions. Nevertheless, the Supreme Court found that such language merely “relieve[s] parties from the requirement of petitioning for rehearing before seeking judicial review ... but [does] not ... prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal.” 482 U.S. at 285, 107 S.Ct. at 2369, 96 L.Ed.2d at 237 (emphasis in original). In other words, when a “petition for reconsideration has been filed within a discretionary review period specifically provided by the agency (and within the period alloted for judicial review of the original order), ... the petition tolls the period for judicial review of the original order.” Id. at 279, 107 S.Ct. at 2366, 96 L.Ed.2d at 234 (footnote omitted).

In reaching its decision, the Court relied on prior constructions of similar “finality” language contained in the Administrative Procedures Act, 5 U.S.C. § 704,4 and concluded that it could not distinguish the language of § 704 from that of the statute under consideration. Id. at 285, 107 S.Ct. at 2369, 96 L.Ed.2d at 237. We likewise find no principled basis for distinguishing the language of § 704 from that appearing in 43 C.F.R. § 4.21(c), or in the recently adopted § 4.403. Although we noted in Geosearch that the ninety day time limit for seeking judicial review furthered a congressional policy of quickly removing clouds on land subject to leasing, 801 F.2d at 1252, almost every limitation period adopted in the agency context reasonably could be said to have as its purpose the speedy and expeditious resolution of conflicting claims of right. This interest, however, must be balanced against the competing interest of preventing the wasteful consumption of judicial resources when a timely petition for reconsideration has been filed and further administrative action could render judicial review unnecessary. This latter concern is reflected in the decisions of three of our sister circuits, which relied on Brotherhood of Locomotive Engineers to hold that parties are precluded from seeking judicial review of agency action during the pendency of a petition for reconsideration. See United Transp. Union v. ICC, 871 F.2d 1114 (D.C.Cir.1989); West Penn Power Co. v. EPA, 860 F.2d 581, 585, 586 (3d Cir.1988); Winter v. ICC, 851 F.2d 1056, 1062 (8th Cir.), cert. denied, — U.S. -, 109 S.Ct. 308, 102 L.Ed.2d 327 (1988). We conclude that a timely petition for reconsideration tolls the ninety day limitations period contained in 30 U.S.C. § 226-2, and that Brotherhood of Locomotive Engineers has effectively overruled our decision in Geosearch.5

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Reppy v. Department of Interior of United States
874 F.2d 728 (Tenth Circuit, 1989)

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874 F.2d 728, 1989 WL 47548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reppy-v-department-of-the-interior-of-the-united-states-ca10-1989.