When we hear the word “trona,” we think of Trona, California, a hardscrabble San Bernardino County town near Death Valley.
We just thought we’d get that out of the way, because today’s case from the Federal Circuit, Barlow & Haun, Inc. v. United States, No. 15-5028 (Oct. 9, 2015), doesn’t involve the town, but it does involve trona mining (in Wyoming).
It seems that the federal government preferred trona mining to oil and gas development. The Bureau of Land Management “indefinitely suspended” oil and gas leases on federal public lands in one part of Wyoming, because oil and gas development posed risks to trona mining. Barlow had 26 oil and gas leases with BLM, and it sued for a taking, and for breach of the leases.
After trial, the Court of Federal Claims concluded that the breach of contract claim failed on the merits, and that the takings claim was not ripe. We won’t go into the details of the CFC’s conclusion about why suspension of the leases was not a breach, except to say that the suspension actually didn’t foreclose all possibility of Barlow drilling in the area, because “BLM repeatedly stated that it would recognize valid existing rights.”
The CFC dismissed the takings claim as not ripe because Barlow had not sought an “APD,” which is “a permit to drill” in bureaucratese. But seeking an APD would have been futile, Barlow argued, to no avail. The same reason that supported the failure of the breach of contract claim — BLM’s statements that it would recognize existing rights, whatever that meant — also meant that an APD might work.
The Federal Circuit affirmed. No “final decision” from BLM meant that the takings claim was not ripe under Williamson County. “BLM had discretion to permit or deny the APD.” Slip op. at 14. Even in light of the “suspension,” held the court: “[i]n particular, the testimony indicated that the BLM could still consider an APD even if the leases were currently suspended. Id. The BLM’s resource management plans also reflect this discretion.” Slip op. at 14.
Seems a little odd to us that an “indefinite suspension” wasn’t really a suspension (if BLM would “recognize existing rights,” then exactly what was it “suspending?”). But that’s the kind of rationale that Williamson County allows.
Barlow & Haun, Inc. v. United States, No. 15-5028 (Fed. Cir. Oct. 9, 2015)