Buried deep in a brief document filed with the U. S. Court of Appeals for the District of Columbia Circuit is a sentence that likely has gotten little notice: “In addition, despite government counsel’s diligence, the government has not yet completed the process for the Solicitor General to determine whether, and to what extent, appeal will be pursued in this case. See 28 C. F. R.
The document, a motion to the court to modify the briefing schedule before the appeals court was filed on February 15 by Tim Preso, attorney for Earth Justice and U. S. Department of Justice attorney Brian Toth.
Counsel for Solenex, Mountain States Legal Foundation was approached about the request and consented.
The filing asks the court to delay the proceedings by 30 days.
Late last year, U. S. District Court for the District of Columbia Judge Richard J. Leon handed down his ruling in the Solenex case and in the related Moncrief case, finding for the plaintiffs Solenex and Moncrief.
Both cases arise out of Glacier County where both Solenex, LLC and W. A. Moncrief, Jr. hold federal oil and gas leases. After decades of delay on the part of federal agencies involved in th e process, primary the U. S. Forest Service and the Bureau of Land Management, the feds made a move during the closing days of the Obama administration to cancel both leases.
After Judge Leon made his ruling against the government’s cancellation, the Department of the Interior filed an appeal.
In a review of the documents the sentence was noticed.
Asked whether this pending decision to appeal was coming from the Solicitor General for the Department of Interior or fr om the top. U. S. Solicitor General Noel Francisco, Christian Corrigan attorney for Mountain States Legal Foundation told the Sun Times via email, “… they are likely referring to U. S. Solicitor General Noel Francisco at the Department of Justice. Generally, it is the Solicitor General’s office which decides whether to appeal cases from the court of appeals to the U. S. Supreme Court.
Because this case is at the D. C. Circuit (known as the second highest court in the land) it could be that the Solicitor General’s office is now involved in evaluating whether this case is actually worthy of the time and resources of an appeal.”
Asked if it was unusual for a party involved in an appeal at this level to still be contemplating their appeal after filing with the appellate court, Corrigan said, “It’s not highly unusual, but I don’t believe it’s common practice. Given that there are intervenors involved, sometimes the government will file the appeal to just to preserve its options in case the other defendants do not appeal.”
Corrigan said that there has not been any other updates to the Solenex and added, “Given this language, however, we still remain hopeful that the Administration will recognize the fundamental fairness in Judge Leon’s ruling and decline to further pursue the appeal. The government kept Sidney Longwell in bureaucratic purgatory for over two decades and he has now prevailed twice in district court.”
At the same time the motion to delay the Solenex schedule was filed with the court, a similar document was filed with the court in the Moncrief case. The same sentence, “In addition, despite government counsel’s diligence, the government has not yet completed the process for the Solicitor General to determine whether, and to what extent, appeal will be pursued in this case.
See 28 C. F. R. 0.20(b),” was also in the Moncrief document.
When asked if the Moncrief would be moot if the feds decide against moving forward with the appeal, Corrigan said, “The cases are separate, so what happens in Solenex does not technically affect Moncrief. However, since the cases and issues are nearly identical, the government will most likely take the same course of action in both cases.”
The proposed schedule revision calls for the opening briefs to be filed on April 4, 2019.