News Flash: Sitting on a drilling permit for 29 years constitutes 'unreasonable delay'

|The Volokh Conspiracy |

On Monday, in Solenex v. Jewell, a federal district court in Washington ruled that a federal agency's failure to act on a drilling permit for 29 years constituted "unreasonable delay" under the Administrative Procedure Act. Still, under the court's decision, the permit holder will have to wait a little bit longer to get any meaningful relief.

Here is how Judge Richard Leon of the U.S. District Court for the District of Columbia described the case:

The factual history of this case is long, detailed, and torturous, but the essential facts, none of which are in dispute, are these: the Bureau of Land Management ("BLM") issued a lease covering 6,247 acres in Montana to plaintiffs predecessor-in-interest in 1982. On January 31, 1985, the BLM approved an application for permit to drill ("APD"), for a single exploratory well to test and evaluate natural gas potential. Since then, the APD has been suspended six times: the first suspension was effective October 1, 1985, and the most recent suspension was an indefinite suspension that has been in place since July 15, 1998. These delays in making a final determination about the suspension of plaintiffs lease are the result of various agencies, including the Forest Service and the BLM, performing various reviews under the National Environmental Policy Act ("NEPA"), the National Historic Preservation Act ("NHPA"), and other applicable statutes. Thus, since the APD was first approved in 1985, the lease has been suspended for more than 29 years! No combination of excuses could possibly justify such ineptitude
or recalcitrance for such an epic period of time. [citations omitted]

Based upon this history, and review of the relevant precedent, Judge Leon had little difficulty concluding that the BLM was in the wrong. "By any measure, defendants' 29-year delay in reviewing plaintiff's suspended lease, and reaching a final determination, is 'unreasonable delay' within the meaning of the APA," he wrote.

Although Judge Leon concluded that the BLM was acting unreasonably, he did not order the agency to immediately lift its suspension of the permit. Rather, citing long-standing precedent discouraging "direct judicial meddling" with agency operations, Judge Leon embraced a "less intrusive" remedy than ordering the agency to act right away. Specifically, he ordered the BLM "to submit, and to stick to, an accelerated and fixed schedule" for completion of whatever review the BLM believes is necessary. While this order does not immediately end the "unreasonable delay" to which the plaintiffs have been subjected, it does offer them some prospect of certainty (if not full relief) at some point in the near future. However long that takes, it will not be another 29 years.