May 22, 2019

Tenth Circuit: FCC’s Actions Not Abuse of Discretion

The Tenth Circuit Court of Appeals published its opinion in Council Tree Investors, Inc. v. Federal Communications Commission on Friday, January 3, 2013.

Petitioners Council Tree Investors, Inc., a communications investment firm, and Bethel Native Corporation, a small wireless carrier (collectively, “Council Tree”), sought review of two orders issued by the Federal Communications Commission (“FCC” or “the Commission”) — the D Block Waiver Order (the “Waiver Order”) issued in 2007 and a Waiver Reconsideration Order issued in 2012.  Council Tree specifically requested nullification of Auction 73, the FCC’s auction of the 700-MHz wireless spectrum conducted in early 2008 pursuant to the Waiver Order.

Council Tree filed a Petition for Reconsideration of the Waiver Order (the “Waiver Reconsideration Petition”) with the FCC in 2007, as well as a Supplement to the Waiver Reconsideration Petition (the “Supplement”) in 2011. In its Waiver Reconsideration Order, the FCC dismissed the Waiver Reconsideration Petition as moot and dismissed the Supplement as untimely.

The Tenth Circuit held the FCC’s actions were not arbitrary, capricious, or an abuse of discretion and dismissed Council Tree’s petition, as it pertained to the Waiver Order, and denied its petition, as it related to the Waiver Reconsideration Order.

Tenth Circuit: National Park Service Did Not Violate NEPA By Excluding Wolf Introduction For Elk Management in RMNP

The Tenth Circuit published its opinion in WildEarth Guardians v. National Park Service on Wednesday, January 9, 2013.

WildEarth Guardians (WildEarth) filed suit in federal district court challenging the National Park Service’s (NPS) elk and vegetation management plan and the related final environmental impact statement for Rocky Mountain National Park. WildEarth alleged the NPS violated the National Environmental Policy Act (NEPA) by failing to include the reintroduction of a naturally reproducing wolf population as one of the alternatives considered in the environmental impact statement. WildEarth also alleged the agency’s proposal to allow volunteers to assist the agency in reducing the elk population violated the Rocky Mountain National Park Enabling Act (RMNP Act).

The Tenth Circuit held that the NPS did meet NEPA’s and the APA’s requirements. The NPS discussed its reasons for rejecting the natural wolf alternative and “drew a rational connection between these reasons and its conclusion by examining the data in the record, consulting experts at its March 2005 meeting on wolf reintroduction, and repeatedly explaining why it excluded the natural wolf alternative from its EIS.”

The court also held that while the RMNP Act prohibits hunting in RMNP, allowing non-NPS personnel to shoot elk did not violate that prohibition as culling is not hunting. The court affirmed the district court.

Tenth Circuit: Environmental Group Plaintiffs Had Standing to Challenge Oil and Gas Leases But Claims Not Ripe

The Tenth Circuit published its opinion in Southern Utah Wilderness Alliance v. Palma on Tuesday, January 8, 2013.

Kirkwood Oil and Gas, LLC owned 39 oil and gas leases in Southern Utah that in the 1980s it applied to convert to combined hydrocarbon leases. Such leases would allow Kirkwood to extract oil from tar sands. The Bureau of Land Management (BLM) never accepted or rejected Kirkwood’s applications. Between 2006 and 2008, BLM and the Interior Board of Land Appeals (IBLA) issued several decisions declaring that the underlying oil and gas leases were “suspended” pending review of the conversion applications. The Southern Utah Wilderness Alliance and several other environmental groups (SUWA) alleged BLM and IBLA violated the Mineral Leasing Act and other federal laws by retroactively deeming the 39 Kirkwood leases to be suspended, thereby avoiding expiration of the leases according to their terms. The district court held SUWA did not have standing to bring its claims and dismissed the suit for lack of subject matter jurisdiction.

The Tenth Circuit discussed the affidavits SUWA submitted to establish injury in fact and held that the district court “misapplied the law when it rejected SUWA’s standing on the basis that the affidavits failed to show its members have visited each of the leases at issue. Neither our court nor the Supreme Court has ever required an environmental plaintiff to show it has traversed each bit of land that will be affected by a challenged agency action.” The court also held that the district court had erred in holding SUWA failed to show a concrete injury sufficient to support standing. “A plaintiff who has repeatedly visited a particular site, has imminent plans to do so again, and whose interests are harmed by a defendant’s conduct has suffered injury in fact that is concrete and particularized.”

The court found that while SUWA was a proper party to challenge the BLM’s decision, its claims were not yet ripe. The challenged decisions were interim decisions, not final. The BLM had not made a decision regarding converting to combined hydrocarbon leases and it appeared unlikely Kirkwood would engage in any oil or gas development until that decision was made. Thus, any harm to SUWA’s members was not imminent or certain. The court remanded to the district court for dismissal without prejudice.

Tenth Circuit: Petition for Review From Order of FDIC Denied

The Tenth Circuit published its opinion in Frontier State Bank v. Federal Deposit Insurance Corp. on Wednesday, December 26, 2012.

In 2002, Frontier State Bank (Frontier) began using a “leverage strategy” under which it funded long-term investments with short-term borrowing to generate profits from the difference (“spread”) between long-term and short-term interest rates. This strategy caused significant concern for bank examiners at the Federal Deposit Insurance Corporation (FDIC). After raising the issue with Frontier several times and being dissatisfied with Frontier’s response, the FDIC sought a cease-and-desist order to keep it from executing its leverage strategy in an unsafe or unsound manner. After a hearing, an ALJ concluded Frontier had engaged in unsafe or unsound practices and recommended a cease-and-desist order that addressed specific issues. The FDIC Board adopted the ALJ’s proposed order and Frontier filed a petition for review with the Tenth Circuit, contending the Board’s order was arbitrary and capricious.

In its order, the Board imposed a 10% tier 1 leverage capital ratio. The Tenth Circuit held that it could not review this part of the order because decision-making on a capital requirement was committed to the FDIC’s sole discretion by the International Lending Supervision Act of 1983. The court had no meaningful standard to use to review the Board’s decision. The court held that the other challenged items in the order were all supported by the ALJ’s findings and his conclusions were reasonable so the Board’s order was not arbitrary or capricious. The court denied Frontier’s petition for review.

Tenth Circuit: Dismissal for Failure to Exhaust Administrative Remedies Not Abuse of Discretion

The Tenth Circuit Court of Appeals published its opinion in Gilmore v. Weatherford on Tuesday, September 4, 2012.

Mine tailings piles known as “chat” have value as fill and gravel. Two piles at issue in this case consist of comingled property because they are owned partially by unrestricted owners and partially by “restricted” owners. The restricted owners are descendants of Quapaw Tribe members who were deemed incompetent and so are unable to freely alienate their property under federal law. Three restricted owners sued Bingham Sand and Gravel for conversion and an accounting for allegedly removing chat without compensating the restricted owners, and Weatherford, as representative of an estate that allegedly sold chat to Bingham. The plaintiffs claimed Bureau of Indian Affairs (BIA) approval was required for any sale or removal of chat from the piles. The plaintiffs also sued the Secretary of the Interior and BIA officials under the Administrative Procedure Act (APA) seeking to compel agency action, and sought an accounting from the BIA.

The district court dismissed the claims against the federal defendants for failure to exhaust administrative remedies. Although the accounting claim was not governed by the APA, the district court exercised its judicial discretion to require exhaustion of that claim as well. The Tenth Circuit held that was not an abuse of discretion.

Once the district court dismissed the claims against the federal defendants, it dismissed the claims against the private defendants for lack of subject matter jurisdiction. The plaintiffs claimed that the removal of the restricted chat required approval of the Secretary of the Interior. The Tenth Circuit reversed the dismissal of all claims regarding the private defendants because the “conversion claim presents a substantial and disputed question of federal law sufficient to confer federal question jurisdiction under 28 U.S.C. § 1331.” With the federal question conversion claim reinstated, the district court could properly exercise supplemental jurisdiction over the accounting claim.