864 F.3d 1105
10th Cir.2017Background
- Farrell-Cooper operates the Rock Island Mine in Oklahoma and received a federal Notice of Violation (NOV) from the Office of Surface Mining (OSM) requiring costly reclamation work under SMCRA.
- Farrell-Cooper appealed the ALJ’s adverse decision to the Interior Board of Land Appeals (IBLA) and timely filed a petition for a stay pending appeal; the IBLA denied the stay, which under 43 C.F.R. § 4.21(a)(3) made the ALJ decision effective immediately.
- After the IBLA denied the stay, OSM began enforcing the NOV; Farrell-Cooper then filed a federal suit seeking judicial review and a stay of enforcement while the IBLA appeal remained pending.
- The district court dismissed the federal suit for lack of subject-matter jurisdiction, concluding the ALJ decision was not final agency action; Farrell-Cooper appealed to the Tenth Circuit.
- The Tenth Circuit considered whether DOI regulations and precedent (principally Darby v. Cisneros) permit immediate judicial review when an ALJ decision becomes effective because an IBLA stay was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an ALJ decision becomes final for APA review when the IBLA denies a stay under 43 C.F.R. § 4.21(a)(3) | Denial of stay made the ALJ decision effective and therefore final and reviewable in federal court under Darby | Denial of stay does not end agency decisionmaking; Bennett finality test and pending IBLA appeal render decision non-final | The ALJ decision became final upon IBLA’s denial of stay; Darby controls and allows judicial review |
| Whether Darby (addressing exhaustion) or Bennett (finality test) governs when intra-agency appeal is required | Darby governs because it directly addresses when an initial decision remains reviewable if not made inoperative pending appeal | Bennett’s two-part test governs finality analysis and shows the agency process was not complete | Darby’s specific rule (initial decision is final unless made inoperative pending appeal) controls here; Bennett does not overrule Darby |
| Whether a pending, mandatory IBLA appeal prevents judicial review even after a stay denial | Mandatory IBLA appeal does not prevent review once the initial decision is made effective; otherwise agencies could insulate decisions from review | Pending IBLA appeal renders the process ongoing and non-final, invoking Stone/Locomotive Engineers doctrines | A pending mandatory appeal does not defeat finality when the regulation makes the initial decision effective; Stone/Locomotive Engineers are limited to optional appeals |
| Whether DOI’s exhaustion regulation (43 C.F.R. § 4.21(c)) requires dismissal if IBLA appeal remains pending | Plaintiff: § 4.21(c) excepts decisions made effective after denial of stay; such decisions are final and reviewable | DOI: § 4.21(c) reflects an exhaustion requirement and IBLA appeal must be pursued before federal suit | Court reads § 4.21 in light of Darby: because the regulation does not render the initial decision inoperative pending appeal, denial of stay makes it final and judicially reviewable |
Key Cases Cited
- Darby v. Cisneros, 509 U.S. 137 (1993) (intra-agency appeal is a prerequisite to judicial review only when statute or agency rule makes the initial decision inoperative pending appeal)
- Bennett v. Spear, 520 U.S. 154 (1997) (two-part test for final agency action: consummation of decision and legal consequences)
- Idaho Watersheds Project v. Hahn, 307 F.3d 815 (9th Cir. 2002) (denial of IBLA stay meant the decision was reviewable in federal court)
- WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013) (IBLA’s failure to act on stay within regulatory period rendered ROD final and reviewable)
- Silverton Snowmobile Club v. United States Forest Service, 433 F.3d 772 (10th Cir. 2006) (exhaustion under § 4.21(c) required when appeal remains undecided; considered for timing of review)
- Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172 (9th Cir. 2000) (denial of IBLA stay left the ROD final and subject to judicial review)