On Monday, U.S. District Court Judge Richard J. Leon rendered a decision in the case of Solenex LLC v. Sally Jewell et al. The case was filed in 2013 after almost three decades of delay imposed by federal agencies upon Solenex as the company has sought to drill an exploratory natural gas well on federal land near East Glacier, Montana.
The ruling comes after oral arguments before Judge Leon last month. Solenex was represented by Steve Lechner of Mountain States Legal Foundation; the U.S. Forest service, the lead federal agency in the case, was represented by U.S. Department of Justice attorney Ruth Ann Storey.
Solenex had filed for a summary judgment alleging that the defendants - the Forest Service and other agencies - had unreasonably delayed action under the Administrative Procedure Act. The Department of Justice (DOJ) argued in a cross-motion that the delay was legal. When the court ordered the DOJ to offer other examples of such lengthy delays, the DOJ lawyer was unable to cite one.
The judge denied the defendants’ motion in total, and granted Solenex’s motion in part.
In the scathing six page order Judge Leon said that factual history of this case is “long, detailed and tortuous.” The judge wrote, “No combination of excuses could possibly justify such ineptitude or recalcitrance for such an epic period of time.”
Judge Leon said that administrative agencies have a duty to decide issues presented to them within a “reasonable time,” and that “reviewing courts have a duty to ‘compel agency action unlawfully held or unreasonably delayed.’”
Citing Nader v. F.C.C. (Federal Communications Commission), 520 F.2d 182, 206 (D.C. Cir. 1975), Judge Leon said the D.C. Circuit Court had remarked, “nine years should be enough time for any agency to decide almost any issue. There comes a point when relegating issues to proceedings that go on without conclusion in any kind of reasonable time frame is tantamount to refusing to address the issues at all, and the result is a denial of justice.”
Judge Leon added that the D.C. Circuit Court “frequently orders recalcitrant agencies to establish schedules, subject to court approval, to finish their reviews and reach final agency decisions.”
In his decision, Judge Leon said that he found that ordering the defendants to “submit, and to stick to, an accelerated and fixed schedule is an appropriate remedy,” rather than ordering the defendants to lift the suspension directly.
Solenex had asked the court to lift the suspension in their motion. Judge Leon denied that portion of the plaintiff’s motion.
In finding for Solenex, Judge Leon instructed the defendants to submit a schedule for the “orderly, expeditious resolution of the decision whether to lift the suspension of the plaintiff’s lease” within 21 days of the order. The court ruled that the schedule will include the defendants’ “proposed tasks remaining to be completed and the rationales for why those tasks are legally necessary.” The order also asks the government to provide an “accelerated timetable for completing those tasks still necessary to expeditiously resolve the issues regarding plaintiff’s suspended lease.”
Judge Leon wrote that after the defendants submit the schedule, the “Court shall either approve or reject the defendants’ schedule or order such further adjustments as appropriate.”
Judge Leon made it clear he will be monitoring the government’s progress on the issue personally. In closing, Judge Leon’s order states, “Any alterations [to the schedule] will require the approval of this court and the defendants will be required to explain any and all material failures to comply, which may possibly be remedied by a judicial order lifting the current suspension entirely.”
In a press release sent to the Sun Times, Earthjustice attorney Tim Preso said, “Today’s ruling is not the last word on the fate of the Badger-Two Medicine region. The remaining oil and gas leases in the Badger-Two Medicine were never validly issued in the first place. They should be cancelled in the interest of preserving one of our country’s last great wild places and an irreplaceable spiritual home for the Blackfeet Nation.”
Earthjustice, representing several organizations opposed to drilling on the Solenex lease, had filed a request with the court for intervenor status, which Judge Leon denied. Earthjustice instead filed an amicus curiae (friend of the court) brief with the court on behalf of the defendants. The Montana Petroleum Association filed an amicus brief on the side of the plaintiff.
Media reports have painted the case before Judge Leon as one that would decide if a well can be drilled. In fact, the case is on the matter of unreasonable delays by federal agencies.
William Perry Pendley, President and Chief Operating Officer of Mountain States Legal Foundation told the Sun Times, “We are pleased the district court recognizes how outrageous is the conduct of the federal government in this matter and are gratified by his intention to hold its feet to the fire.”
Crowley Fleck attorney Colby Branch, based in Billings, crafted the brief submitted by Montana Petroleum Association. Branch told the Sun Times, “We’re glad to see that this judge recognizes what the federal bureaucracy was doing. This is a small step in restoring accountability and keeping public lands open for the public.”
The Sun Times reached out to the Forest Service for comment. As of deadline, there had been no response.
