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SALT LAKE CITY — A federal judge is being asked to revisit his ruling that a trio of rural counties in Utah and three energy companies filed a lawsuit too late contesting the U.S. Department of Interior's rescinding auctioned oil leases.
The integral component of the argument brought before Judge Dee Benson on Wednesday rested on when a "decision" is really a decision and therefore rises to the level of a challengeable action.
The issue involves 77 leases auctioned off by the Bureau of Land Management in Salt Lake City in December 2008 — the same auction in which activist Timothy DeChristopher bid on parcels out of protest and now faces federal criminal charges over the bogus bids.
Two months later, Interior Secretary Ken Salazar said he was going to rescind the leases and on Feb. 6 referenced the decision in an internal memo. On Feb. 12, Salazar directed a top Utah BLM official to withdraw them.
Benson ruled last September that Salazar was wrong to yank the leases — that it was a move that ran contrary to the provisions of the Mineral Leasing Act. Although the energy companies and Uintah, Duchesne and Carbon counties prevailed in "Part 1" of the case, they lost on "Part 2" of Benson's ruling, when he said they had failed to bring the challenge within the 90-day window of the secretary's final decision.
Attorneys for the counties and the energy companies argued that Salazar's announcement that he was going to pull the leases did not represent an agency action and was essentially a scenario in which he said he had decided to decide. As a result, it did not set the clock ticking on the time period in which to appeal the action, they argued.
In contrast, attorneys representing the federal government said the point at which Salazar announced his decision was essentially a "consummation" of that decision in which legal consequences would follow.
Benson seemed to take to heart the intricacies of both arguments, pondering before the attorneys a variety of legal brain teasers.
"President Truman may have said we are going to drop the bomb on Japan, but until something happens, nobody's rights got affected," Benson mused.
He revisited the point later with a Department of Justice attorney, asking, "Why would (Salazar) tell the BLM to withdraw the leases if he had already withdrawn them?"
If Benson reverses his earlier decision and uses the Feb. 12 communication as the "trigger" for the time clock, the counties' and energy companies' case remains alive.
Mark Ward, an attorney with the Utah Association of Counties, told Benson the Feb. 6 communication by Salazar gave no clear indication as to what was going to happen in the days or months to come.
"Feb. 12 is when the hammer came down. Feb. 12 is when the lives of the bidders changed," Ward said.
Benson agreed — at least philosophically — that if a suit had been brought between Feb. 6 and Feb. 12, the bidders could not have proven harm because the leases had yet to be officially withdrawn.
On the other hand, Benson stressed that the plain language of the leasing act pins its meaning on a "decision" by the secretary.
"I didn't write this. Blame Congress," Benson said. Benson took the case under advisement and will issue a ruling at a later date.
E-mail: amyjoi@desnews.com
