Dunn-McCampbell Royalty Interest, Inc. v. National Park Service , 112 F.3d 1283 ( 1997 )

REVISED
United States Court of Appeals,
Fifth Circuit.
DUNN-McCAMPBELL ROYALTY INTEREST, INC., a Texas Corporation;
Dunn-Padre Corporation, a Texas Corporation; McCampbell Minerals,
Inc., Plaintiffs-Appellants,
v.
NATIONAL PARK SERVICE, an Agency of the United States Department
of Interior; Butch Farabee, in his official capacity as
Superintendent for the Padre Island National Seashore, Defendants-
Appellees.
No. 95-40770.
May 23, 1997.
Appeal from the United States District Court for the Southern
District of Texas.
Before JONES, DUHÉ and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Plaintiffs Dunn-McCampbell Royalty Interest, Dunn-Padre
Corporation, and McCampbell Minerals (collectively "Dunn-
McCampbell") appeal the district court's grant of summary judgment
in the companies' action challenging the regulatory authority of
the National Park Service.
I
P.F. Dunn once owned both the land and mineral rights to a
long stretch of barrier islands in Texas, now known collectively as
Padre Island. In 1926, Dunn severed the two estates, conveying the
surface estate to third parties and reserving the subsurface
mineral rights for himself. Dunn conveyed the mineral estate to
plaintiffs Dunn-McCampbell, and the companies leased the mineral
1
estate for exploration and development, primarily to the Sun Oil
Company.
Pursuant to the Padre Island National Seashore Enabling
Legislation, 16 U.S.C. § 459d et seq., the National Park Service
acquired a seventy-mile stretch of the barrier island surface
estate and established the Padre Island National Seashore ("PINS"),
the longest stretch of undeveloped ocean beach in the United
States. In 1978, the National Park Service issued its Non-Federal
Oil and Gas Rights regulations, 36 C.F.R. § 9B ("9B regulations"),
which "control all activities within any unit of the National Park
System in the exercise of rights to oil and gas not owned by the
United States where access is on, across or through federally owned
or controlled lands or waters." 36 C.F.R. § 9.30 (1995). These
regulations apply to all mineral rights that must be accessed
through national parks, including Dunn-McCampbell's mineral estate
under Padre Island.
Among other things, the 9B regulations require that mineral
developers submit a plan of operations to the National Park Service
for approval before extracting subsurface minerals. Since the
regulations took effect in 1979, Dunn-McCampbell's lessees have
submitted fifty-two plans of operations to the Park Service, and
the Park Service has approved each plan. The Park Service has
never denied a plan of operations there.
Between 1986 and 1989, Dunn-McCampbell secured releases of
most of Sun Oil's interests on Padre Island. Dunn-McCampbell has
never sought to exercise its regained mineral rights and has never
2
submitted a plan of operations to the Park Service. Dunn-
McCampbell has declared by affidavit, however, that the severity of
the 9B regulations has deterred oil companies from leasing these
mineral rights. They contend that such chilling is remediable in
this court.
Dunn-McCampbell brought this action on March 8, 1994,
asserting both facial and "as applied" challenges to the 9B
regulations. The companies claimed federal question jurisdiction
under 28 U.S.C. § 1331, as well as jurisdiction under the Mandamus
Act, 28 U.S.C. § 1361, and the Administrative Procedure Act ("APA")
5 U.S.C. § 704. Specifically, Dunn-McCampbell contended that (1)
Texas law, under which the mineral estate is dominant to the
surface estate, precludes the Park Service from regulating or
blocking mineral development, (2) the National Park Service has
exceeded its constitutional and statutory authority in passing the
9B regulations, and (3) the 9B regulations amounted to an
uncompensated taking under the Fifth Amendment.
The district court granted the Park Service's motion for
summary judgment, holding that, although Dunn-McCampbell had
standing to sue, the companies failed to pursue their facial and
applied challenges within the six-year statute of limitations
applied to civil claims under 28 U.S.C. § 2401(a). The district
court also addressed and dismissed Dunn-McCampbell's substantive
claims as being without merit. Finally, the court severed Dunn-
McCampbell's takings claim and transferred it to the Court of
Federal Claims. Dunn-McCampbell filed this timely appeal.
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II
The district court held that Dunn-McCampbell's challenges
were time barred and that the companies' substantive claims were
without merit. We review the district court's grant of a summary
judgment motion de novo. Nose v. Attorney General of the United
States, 993 F.2d 75, 78 (5th Cir.), reh'g denied, 998 F.2d 1015
(1993). Summary judgment is appropriate when "there is no genuine
issue as to any material fact and ... the moving party is entitled
to a judgment as a matter of law." FED. R. CIV. P. 56(c). When
ruling on summary judgment motions, we credit the evidence of the
nonmovant and draw all justifiable inferences in his favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505,
2513, 91 L. Ed. 2d 202 (1986). However, we must affirm summary
judgment if there is no need for trial. O'Hare v. Global Natural
Resources, Inc., 898 F.2d 1015, 1017 (5th Cir.1990).
As a preliminary matter, we note that neither the National
Park Service organic statute, 16 U.S.C. § 1 et seq., nor the Padre
Island National Seashore Enabling Legislation, 16 U.S.C. § 459d,
provides directly for judicial review, and neither creates a
private right of action. Federal courts are courts of limited
jurisdiction, and they may not hear claims without jurisdiction
conferred by statute. Veldhoen v. United States Coast Guard, T.A.,
35 F.3d 222, 225 (5th Cir.1994). However, even absent a statutory
cause of action, Dunn-McCampbell may challenge the agency's
authority under the APA. See 5 U.S.C. § 704 ("Agency action made
reviewable by statute and final agency action for which there is no
4
other adequate remedy in a court are subject to judicial review.").
Dunn-McCampbell may therefore challenge the National Park Service's
9B regulations under the APA, and this court will have federal
question jurisdiction under 28 U.S.C. § 1331. Veldhoen, 35 F.3d at
225.
Accordingly, Dunn-McCampbell's APA challenge is governed by
the general statute of limitations provision of 28 U.S.C. §
2401(a), which provides that every civil action against the United
States is barred unless brought within six years of accrual.1
Under established principles of sovereign immunity, the United
States is immune from suit unless it consents, and the terms of its
consent circumscribe our jurisdiction. United States v. Dalm, 494
U.S. 596, 608, 110 S. Ct. 1361, 1368, 108 L. Ed. 2d 548 (1990). The
applicable statute of limitations is one such term of consent, and
failure to sue the United States within the limitations period is
not merely a waivable defense. It operates to deprive federal
courts of jurisdiction. Sisseton-Wahpeton Sioux Tribe v. United
States, 895 F.2d 588, 592 (9th Cir.), cert. denied, 498 U.S. 824,
111 S. Ct. 75, 112 L. Ed. 2d 48 (1990).
A
Dunn-McCampbell asserts both facial and applied challenges to
the Park Service regulations. The companies assert that the
1
Although an administrative proceeding is not a civil action,
a complaint filed in federal court seeking review of an
administrative decision is. Wind River Mining Corp. v. United
States, 946 F.2d 710, 712 (9th Cir.1991); N.V. Philips'
Gloeilampenfabrieken v. Atomic Energy Comm'n, 316 F.2d 401, 405-06
(D.C.Cir.1963).
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regulations exceeded National Park Service authority under the
Padre Island National Seashore Act, 16 U.S.C. § 459d et seq. We
need not reach the merits of that claim here. On a facial
challenge to a regulation, the limitations period begins to run
when the agency publishes the regulation in the Federal Register.
Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S. Ct. 1,
3, 92 L. Ed. 10 (1947); Nutt v. Drug Enforcement Administration,
916 F.2d 202, 203 (5th Cir.1990); Friends of Sierra Railroad, Inc.
v. Interstate Commerce Comm'n, 881 F.2d 663, 667-68 (9th Cir.1989),
cert. denied, 493 U.S. 1093, 110 S. Ct. 1166, 107 L. Ed. 2d 1069
(1990); see also 44 U.S.C. § 1507 (filing a document in the
Federal Register is sufficient to give notice of the contents to
any person subject to or affected by it). Dunn-McCampbell failed
to mount a facial challenge to the regulations within six years of
their publication in 1979, and the companies' cause of action falls
outside the limitations period for civil actions against the United
States in § 2401(a).
It is possible, however, to challenge a regulation after the
limitations period has expired, provided that the ground for the
challenge is that the issuing agency exceeded its constitutional or
statutory authority. To sustain such a challenge, however, the
claimant must show some direct, final agency action involving the
particular plaintiff within six years of filing suit. The Ninth
Circuit, for example, has held that a challenger may contest an
agency decision as exceeding constitutional or statutory authority
after the limitations period, but only by petitioning the agency to
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review the application of the regulation to that particular
challenger. Wind River Mining Corp. v. United States, 946 F.2d
710, 715 (9th Cir.1991). Although the Wind River Court never said
so explicitly, the court treated the agency's denial of that
petition as a "final agency action" sufficient to create a new
cause of action under the APA.
Similarly, in Public Citizen v. Nuclear Regulatory Commission,
the D.C. Circuit held that it had jurisdiction to hear a
substantive challenge after the limitations period had run. 901
F.2d 147, 152 (D.C.Cir.), cert. denied, 498 U.S. 992, 111 S. Ct.
536, 112 L. Ed. 2d 546 (1990). In that case, the claimant filed a
petition with the agency to rescind regulations, then challenged
the agency's denial of the petition in federal court. Id. Indeed,
we have held that when an agency applies a rule, the limitations
period running from the rule's publication will not bar a claimant
from challenging the agency's statutory authority. Texas v. United
States, 749 F.2d 1144, 1146 (5th Cir.), reh'g denied, cert. denied,
472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 642 (1985).
These cases do not create an exception from the general rule
that the limitations period begins to run from the date of
publication in the Federal Register. They merely stand for the
proposition that an agency's application of a rule to a party
creates a new, six-year cause of action to challenge to the
agency's constitutional or statutory authority.
If Dunn-McCampbell were able to point to such an application
of the regulations here, or if they had petitioned the National
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Park Service to change the 9B regulations and been denied, this
court might have jurisdiction to hear that case. Dunn-McCampbell
has failed to make such a showing. Accordingly, we hold that the
applicable statute of limitations bars Dunn-McCampbell's facial
challenge to the 9B regulations.
B
An "as applied" challenge must rest on final agency action
under the APA. 5 U.S.C. § 704 ("Agency action made reviewable by
statute and final agency action for which there is no remedy in a
court are subject to judicial review."). But absent some "final"
action, the APA will not provide a cause of action to challenge
agency decisions. Lujan v. National Wildlife Federation, 497 U.S.
871, 882, 110 S. Ct. 3177, 3185, 111 L. Ed. 2d 695 (1990); Veldhoen,
35 F.3d at 225. The Supreme Court has identified four factors for
determining when agency action is final: (1) whether the
challenged action is a definitive statement of the agency's
position, (2) whether the action has the status of law with
penalties for noncompliance, (3) whether the impact on the
plaintiff is direct and immediate, and (4) whether the agency
expects immediate compliance. Abbott Laboratories v. Gardner, 387
U.S. 136, 149-53, 87 S. Ct. 1507, 1516-17, 18 L. Ed. 2d 681 (1967),
overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105,
97 S. Ct. 980, 984, 51 L. Ed. 2d 192 (1977).
Under this standard, Dunn-McCampbell arguably might challenge
a Park Service denial of a proposed plan of operations. Dunn-
McCampbell might even be able to challenge action that the Park
8
Service took to block the companies' access to their mineral
estate. We need not reach those questions here, however, since it
is undisputed that neither of these events has occurred. The
National Park Service has taken no action against Dunn-McCampbell
that demands immediate compliance. It is a tautology that Dunn-
McCampbell may not challenge the 9B regulations as applied until
the Park Service applies the regulations to Dunn-McCampbell.2
III
In addition to federal question jurisdiction, Dunn-McCampbell
has asserted jurisdiction under the Mandamus Act. This statute
requires exceptional showings that Dunn-McCampbell has not met.
The statute provides that: "The district courts shall have
original jurisdiction of any action in the nature of mandamus to
compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff." 28 U.S.C. §
1361.
Mandamus is an extraordinary remedy, available only where
government officials clearly have failed to perform
nondiscretionary duties. Pittston Coal Group v. Sebben, 488 U.S.
105, 121, 109 S. Ct. 414, 424, 102 L. Ed. 2d 408 (1988); Carter v.
Seamans, 411 F.2d 767, 773 (5th Cir.1969), cert. denied, 397 U.S.
941, 90 S. Ct. 953, 25 L. Ed. 2d 121 (1970). In order for mandamus to
issue, Dunn-McCampbell must demonstrate that a government officer
2
Relatedly, we need not decide whether Dunn-McCampbell would
have standing to contest the Park Service's regulation of the
companies' lessee Sun Oil, because the last such regulation
occurred more than six years before this action was filed.
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owes the companies a legal duty that is a specific, ministerial
act, devoid of the exercise of judgment or discretion. Richardson
v. United States, 465 F.2d 844, 849 (3d Cir.1972), rev'd on other
grounds, 418 U.S. 166, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974). The
legal duty must be set out in the Constitution or by statute,
Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir.1992), and its
performance must be positively commanded and so plainly prescribed
as to be free from doubt. Id.
Dunn-McCampbell has established none of the above. The
companies have not identified which duty they are owed. They have
not pointed to a statutory or constitutional basis for any duty.
We therefore cannot, and need not, decide whether such a duty would
be mandatory or discretionary. Dunn-McCampbell's general claims of
agency overreaching are simply insufficient to create a legal duty
under the Mandamus Act.
IV
In sum, Dunn-McCampbell is time barred from asserting a facial
challenge, and the Park Service has not yet applied the regulations
to the companies, so the companies may not challenge the 9B
regulations under the APA. They have not identified a statutory or
constitutional duty meriting relief under the Mandamus Act.
For these reasons, we hold that the district court was not in
error in granting the Park Service's motion for summary judgment.
Accordingly, we AFFIRM.
EDITH H. JONES, Circuit Judge, dissenting:
With due respect to my colleagues, I am not convinced that the
10
statute of limitations has run against Dunn-McCampbell in this
case. I would reverse and remand for further proceedings that
would elicit when Dunn-McCampbell first began to be injured by the
cost of compliance with the regulations.
It is important to clarify, as the majority has not done, that
under Texas law, Dunn-McCampbell was prevented in two ways from
being able to challenge the Park Service regulations while it
remained simply a lessor/overriding royalty owner, whose mineral
interest was being developed by other operators. Its interest was
a non-possessory interest with a possibility of reverter when the
leases terminated. First, the holder of an overriding royalty in
Texas bears no portion of the production costs; its interest is
based on gross production from the wells. Hence, Dunn-McCampbell
could not have been charged for any increased operating costs
caused by the Park Service regulations and suffered no injury that
could confer standing to sue the government. Additionally, the
lease operator in Texas is responsible for prudently developing and
maintaining the mineral lease, a responsibility which includes the
obligation to pursue administrative remedies to benefit the lease.
Amoco Production Co. v. Alexander, 622 S.W.2d 563, 570 (1981); R.
Hemingway, Texas Law of Oil & Gas, § 819(D) (3d ed.1991). It fell
to the lessee, Sun, rather than Dunn-McCampbell as lessor to
maintain a lawsuit against the Park Service while Sun was operator,
but as noted, such a lawsuit could produce immediate monetary
damages only for Sun.
Because of the parties' state law and contractual positions,
11
which surely should not be ignored for standing purposes, Dunn-
McCampbell could not have sued the Park Service before it began to
reacquire its leases in 1986-89. Limitations on certain challenges
to the regulations could not begin to run against Dunn-McCampbell
until that time.
The only legal question, then, is what kind of claims Dunn-
McCampbell could advance after 1986-89 against the Park Service,
when it acquired standing to sue. I agree with the majority that
by the time Dunn-McCampbell achieved standing, it could not
challenge the "procedural" basis for the Park Service's 1979
regulations. According to terminology developed in the D.C.
Circuit, "procedural" challenges address the agency's compliance
with rulemaking requirements such as notice and comment, while
"substantive" challenges attack the regulation's compliance with
statutory authority or other substantive deficiency. See generally
N.L.R.B. Union v. FLRA, 834 F.2d 191, 195-97 (D.C.Cir.1987).
Because it is imperative to the administrative process that
procedural challenges be posed at the onset of a newly-promulgated
regulation, a number of agency statutes set very short deadlines,
e.g. 60 days, on initiating such claims. See, e.g., id. The Park
Service lacks such organic statutory protection, however, so the
six-year general federal limitations statute governs procedural
challenges in this case, and no party, including Dunn-McCampbell,
could pursue these challenges after 1985.
It is equally well settled, however, that if an agency
12
regulation is not authorized by its governing statute,3 a party
injured by application of the regulation may raise the issue
outside the statutory limitations period; a regulation initially
unauthorized by statute cannot become authorized by the mere
passage of time. The point that divides the majority and me is
their insistence that the agency's lack of statutory authority
could be raised by Dunn-McCampbell only in defense against an
agency enforcement action or if the company petitions to rescind or
amend the Park Service regulations and receives an adverse
decision. I differ with the majority over what kind of "injury"
from agency "action" is necessary to precipitate the claim. In my
view, it is a waste of time to require as a prerequisite to suit
that Dunn-McCampbell manufacture "agency action" by petitioning the
Park Service to revoke its regulations and suffering—at some time
in the possibly remote future—the inevitable rebuff. Dunn-
McCampbell claims that the existence of Park Service regulations
renders it uneconomic for new operators even to bid on
reinstituting production from its Padre Island mineral rights.4
3
While nearly all the courts that have decided these questions
analytically distinguished between "procedural" and "substantive"
challenges, as I have done, the majority identifies only "facial"
and "as applied" challenges to the regulations. The majority's
terminology is unnecessarily confusing. A "facial" challenge could
attack the procedure, the substantive basis, or the regulation's
subservience to its governing statute, and under prevailing law,
only the first type of challenge is absolutely barred within fixed
periods after the statute has been promulgated. Despite the
majority's failure to conform to the more common analytical
distinction, I do not understand their opinion to disagree with
those cases.
4
For this reason, it is not material that Dunn-McCampbell has
not approached the Park Service with plans to develop the leases.
13
The company seeks declaratory judgment relief from the regulation's
onerous effect. This claim may or may not be well-founded, but it
definitely alleges injury occasioned by agency action, consisting
of the overlay of numerous Park Service regulations and the
constantly changing and thus unpredictable nature of the
regulations. Consequently, if Dunn-McCampbell filed suit within
six years after it effectively reacquired its leases, its action is
timely.
We must recall the essence of Dunn-McCampbell's legal
claim—that when Padre Island Park was transferred to the federal
government, Texas reserved the right to regulate oil and gas
production from Dunn-McCampbell's mineral interests, which were
never transferred to federal jurisdiction. If this claim is
correct, the Park Service has not had jurisdiction to regulate at
all. Dunn-McCampbell poses a straightforward, albeit complex,
legal issue readily amenable to judicial review. Under the
particular facts of this case, it is perverse for the majority to
require Dunn-McCampbell to spend a lot of time and money
petitioning the agency to reconsider its authority simply to lay
the predicate for a future lawsuit.5 If Dunn-McCampbell has sued
According to its allegations, to do so would require an operator to
invest considerable resources in making a good-faith estimate of
the costs of its operations and the hindrances caused by Park
Service regulations—and all this would be done simply to
precipitate a lawsuit. Under these circumstances, Dunn-
McCampbell's claim is ripe for adjudication.
5
See Public Citizen v. Nuclear Regulatory Comm'n, 901 F.2d
147, 152 (D.C.Cir.1990) ("were we to hold in this case that Public
Citizen's challenge to the lawfulness of the NRC's action was
untimely, Public Citizen could file a petition for rulemaking and
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within six years of the dates it began effectively reacquiring
leases, I would allow this suit to go forward.
then raise its claim of unlawfulness when the Commission denied the
petition. Such a requirement would be a waste of everyone's time
and resources.")
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