Last week in Washington, D.C., a federal judge heard arguments in a lawsuit by a Louisiana man against the federal government that bars him from using property he bought nearly four decades earlier. Sidney Longwell of Baton Rouge was too ill to travel; sitting in for him with his Mountain States Legal Foundation attorney were his daughter Kelly and friend Sonny Cranch, members of his tiny company, Solenex, LLC. Senior Judge Richard J. Leon presided over the hour-long proceeding and conceded its importance. “No matter how I rule,” noting trials will delay his opinion until summer, “this is going to the Supreme Court.”
In 1982, the Bureau of Land Management issued Longwell a 6,247-acre oil and gas lease in the Badger-Two Medicine Area of the Lewis and Clark National Forest—south of Glacier National Park, the Great Northern Railroad, and U.S. Highway 2, east of private lands, and southwest of the Blackfeet Reservation in Glacier County in northwestern Montana. In 1983, an application for permit to drill was submitted for one well to evaluate the potential of that part of the Overthrust Belt, whose unique geology may yield “100 trillion cubic feet of natural gas.” After four National Environmental Policy Act and National Historic Preservation Act reviews, which found no “cultural resources” or “religious site or activities,” the APD was approved in 1985, 1987, 1991, and finally in 1993—subject to onerous mitigation measures. New reviews are required if producible quantities of energy are found by drilling.
Nonetheless, the Clinton administration tried to kill the lease. In 1993, 1994, 1995, 1996, and 1997, Secretary of the Interior Bruce Babbitt suspended lease activity for various ostensible purposes; then, in 1998, he made it indefinite. In 1983, the nearby Blackfeet tribe supported leasing, but over the years changed its position, issued drilling rights on its reservation, and asserted the area as sacred. A BLM official said, however, a $5 million payment to the tribe would remove all objections.
In 2013, Longwell sued to end the decades-long suspension. In 2015, hearing his pitiful plight, Judge Leon called it “Kafkaesque” and ordered a decision. In 2016, then-Secretary of the Interior Sally Jewell made a ruling — but, instead of allowing Longwell to do what he contracted for and was permitted lawfully to do, she canceled his lease and voided his APD.
The revocation is unprecedented! Never in the history of the Mineral Leasing Act—by which Congress authorized secretaries to issue and oversee oil and gas leases—has one been canceled unilaterally. Worse yet, in arguing that Jewell can cancel a 34-year old lease subjected to a decade of review and whose legality was defended by five administrations, her lawyers claim not a congressional delegation of authority but “inherent authority” under the Property Clause. That clause, however, grants all power over federal lands to Congress.
At last summer’s prestigious Rocky Mountain Mineral Law Institute, a scholar warned “the rights guaranteed under a federal oil and gas lease are not as certain as they once seemed and are often not what lessees bargained for” given the Solenex cancellation. The U.S. Chamber of Commerce argued that more than oil and gas leasing was affected: the “unilateral and arbitrary cancellation of [the lease], more than 30 years after its issuance, violates well-established principles of contract law and property rights [creating] considerable uncertainty surrounding the enforceability of government contracts.”
After all of that, what does Judge Leon think? Although it is impossible to predict outcomes based on questions or comments during argument, Leon seemed troubled. “They built the Empire State Building in one year—one year!” he responded when the federal lawyer tried to excuse the years of delay. Moreover, he seemed more than willing to fulfill his duty, “This is the last stop of the train.”
Finally, he appeared moved by the injustice of it all. “This case calls out for equitable relief—on its face!” Sounds fair.
William Perry Pendley is a contributor to the Washington Examiner’s Beltway Confidential blog. He is president of the Mountain States Legal Foundation, has argued cases before the Supreme Court and worked in the Department of the Interior during the Reagan administration. He is the author of Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today.
