*1 Bowman, 1192, v. States 783 F.2d tation. United The evidence is sufficient on all counts, Cir.1986).12 (5th sufficiency Perez’s ar gument to count 12 fails as well. as AFFIRMED complain
The Cisneroses that their entirely upon
convictions were based the un testimony
corroborated of a number co-
conspirators who had made deals with the resulting
Government and that the convic they
tions are so unreliable cannot stand. argument quantity
Their focuses not on the DUNN-McCAMPBELL ROYALTY IN quality of the evidence rather the but the TEREST, INC., Corporation; a Texas evidence. Corporation, Dunn-Padre a Texas Cor The law in this is that a circuit conviction poration; McCampbell Minerals, Inc., may be sustained on the uncorroborated tes Plaintiffs-Appellants, timony accomplice person of an or of a who plea bargain has entered into a with the SERVICE, Agency NATIONAL PARK Osum, Government. United States v. Department of the United States of Inte (5th Cir.1991). 1394, 1405 Although F.2d the rior; Farabee, Butch in his official ca acknowledge prece Cisneros brothers our pacity Superintendent for the Padre dent, they persist in nevertheless their Seashore, Island National Defendants- They present nothing claims. to indicate Appellees. apply that Osum should not to this case. Moreover, telephone records and the tes No. 95-40770. timony regarding of law enforcement officers containing drugs seizures vehicles circum United Appeals, States Court of stantially supported coconspirator testi Fifth Circuit.
mony. The Cisneroses elicited details of May arrangement each witnesses’ with the Gov ernment on cross-examination in front of the
jury; required. no more is See United Jaras, (5th
States v. 387-88
Cir.1996).13
Regarding money laundering
count, upon the Government relies the Cisne cash, purchase
ros brothers’ of a truck for name, titling of that truck another’s drug transpor-
and the use of that truck for challenges sufficiency 12. Perez conspiracy beyond also a reasonable doubt. United conspiracy Morris, evidence on count count. Cir.), States v. cert. argues charges Perez that the indictment him — -, conspiring with with a dozen individuals to traf- marijuana, only fick in but that at trial the con- spirator he was ever linked to was Amoldo Bel- suggest 13. The further Cisneroses that the dis- montes. Perez claims that the did Government instructing jury trict court erred not that prove alleged, conspiracy but rather coconspirators’ testimony corroboration of the proved conspiracies, only several smaller one of jury was needed. The court did instruct the which included him but of which all contained great ingredient accomplice the common of Amoldo should consider with care the Belmontes. assertion, Contrary event, viewing testimony. light to Perez’s prece- the evi- of our light govern- dence in dent, most favorable to the the Cisneroses have not shown that ment, the evidence was not such that it would court district erred. preclude jurors finding single reasonable *2 GARZA, Judge:
EMILIO M. Circuit Dunn-MeCampbell Plaintiffs Royalty In- terest, Corporation, Dunn-Padre (collectively Minerals “Dunn- McCampbell”) appeal the district court’s *3 grant summary judgment of in compa- challenging regulatory nies’ action au- thority of the National Park Service. I P.F. Dunn once owned both the land and rights long mineral to a stretch of barrier Texas, islands in collectively now known Padre Island. In Dunn severed the estates, conveying two the surface estate to parties reserving third and the subsurface rights mineral conveyed himself. Dunn plaintiffs the mineral estate Dunn- McCampbell, leased the exploration mineral estate for and develop- ment, primarily Company. to the Sun Oil Pursuant to the Padre Island National Enabling Legislation, Seashore 16 U.S.C. seq., 459d et § the National Park Service acquired seventy-mile stretch of the barrier island surface estate and established the Pa- (“PINS”), dre Island National Seashore longest undeveloped stretch of ocean beach in the United States. the National Watt, Houston, TX, Dick Richard John Park Service issued its Non-Federal Oil and Heymann, Gordon, IV, Clare Charles W. Mi- (“9B Rights regulations, § Gas 36 C.F.R. 9B Sullivan, Porter, Rogers, chael J. Dahlman & regulations”), which “control all activities Gordon, Christi, TX, Corpus for Plaintiffs- any System within unit of the National Park Appellants. rights gas the exercise of to oil and owned the United States where access is Justice, Mergen, Dept, Andrew C. U.S. of on, through federally across or owned or Section, DC, Appellate Washington, Charles controlled lands or waters.” 36 C.F.R. Wendlandt, Jr., Christi, TX, Corpus William regulations apply 9.30 These to all Stahr, Klarquist, Thompson Robert L. John rights through mineral that must be accessed Justice, Dept, DC, Washington, U.S. of Lar- parks, including Dunn-McCamp- national ry Marcy, Office, Houston, Attorney’s C. U.S. TX, bell’s mineral estate under Padre Island. Ferrell, Justice, Dept, Brian L. of Div., Environment & Resources Natural Among things, other Section, DC, Litigation Washington, General require developers that mineral submit a Defendants-Appellees. plan operations of to the National Park Ser- approval extracting
vice for before subsur- face minerals. Since took 1979, Dunn-McCampbell’s effect in lessees JONES, fifty-two plans operations Before have DUHÉ EMILIO M. submitted of GARZA, Service, Judges. Circuit the Park Service approved plan. each
has
The Park
and that
companies’
substantive claims
plan
operations
denied a
never
there. were without merit. We review the district
grant
summary judgment
court’s
of a
motion
1989, Dunn-McCamp-
Between 1986 and
Attorney
de novo. Nose v.
General
bell
releases of most of
secured
Sun Oil’s
States,
Cir.),
United
Dunn-McCamp-
interests on Padre Island.
reh’g
tions,
amounted to
jurisdiction
not hear claims without
con
uncompensated taking
an
under the Fifth
ferred
statute. Veldhoen v. United States
Amendment.
Guard, T.A,
(5th
Coast
225
Cir.1994). However,
statutory
even absent a
granted
The district court
the Park Ser-
action,
cause of
Dunn-McCampbell may chal
summary judgment,
vice’s motion for
holding
lenge
agency’s authority
under the APA.
that, although Dunn-McCampbell had stand-
§
See 5
(“Agency
U.S.C.
704
action made
sue,
ing
pursue
failed to
reviewable
agency
statute and final
action
applied challenges
their facial and
within the
for which there is no
adequate remedy
other
six-year
applied
statute of limitations
to civil
review.”).
subject
judicial
a court are
2401(a).
§
claims under 28 U.S.C.
The dis-
Dunn-McCampbell may
therefore
trict court also addressed and dismissed
the National
Park Service’s 9B
Dunn-McCampbell’s substantive claims as
APA,
under the
and this court will have
being
Finally,
without merit.
the court sev-
question jurisdiction
federal
under 28 U.S.C.
ered Dunn-McCampbell’s takings claim and
Veldhoen,
§ 1331.
II 2401(a), provides which every civil The district court held that Dunn action the United States is barred McCampbell’s challenges were time brought years barred unless within six of accrual.1 Although proceeding seeking administrative is not a review of an administrative decision is. action, complaint States, civil Mining Corp. filed in federal court Wind River v. United 946
1287
principles
sovereign
established
im
its
statutory authority.
Under
constitutional or
To
munity,
challenge,
the United States is
sustain such a
immune
the claim-
consents,
and the terms of
direct,
suit unless
its
ant must show some
agency
final
ac-
jurisdiction.
consent circumscribe our
Unit
involving
particular
tion
plaintiff
within
Dalm,
596, 608,
ed
494
States
110
filing
Circuit,
six
suit. The Ninth
1361, 1368,
S.Ct.
A to create a new cause of action under the APA. Dunn-McCampbell asserts both fa applied challenges cial and to the Park Ser Similarly, in Public Citizen v. Nuclear *5 regulations. vice assert that Commission, Regulatory the D.C. Circuit regulations exceeded National Park Ser jurisdiction held that it had to hear a sub authority vice under the Padre Island Na challenge stantive after period the limitations Act, § tional Seashore 16 seq. U.S.C. 459d et 147, (D.C.Cir.), had run. 901 F.2d 152 cert.
We need not reach the merits of that claim denied,
992,
536,
498
111
S.Ct.
112
challenge
regulation,
here.
a facial
On
to a
(1990).
case,
L.Ed.2d 546
In that
the claim
period begins
the limitations
to run when the
petition
ant
agency
filed a
with the
to rescind
agency publishes
regulation
in the Feder
regulations,
challenged
agency’s
then
de
Register.
al
Crop
Corp.
Federal
Ins.
v. Mer
petition
nial of the
in federal court.
Id.
rill,
380, 384,
1, 3,
332 U.S.
68
92
S.Ct.
L.Ed.
Indeed, we
agency
have held that when an
(1947);
Drug
10
Nutt v.
Ad
Enforcement
rule,
applies a
period running
the limitations
ministration,
(5th
202,
916 F.2d
203
Cir.
publication
from the rule’s
will not bar a
1990);
Railroad,
Friends
Sierra
Inc. v.
of
challenging
claimant
agency’s
statu
Comm’n,
663,
Interstate Commerce
881 F.2d
States,
tory authority. Texas v. United
749
(9th Cir.1989),
denied,
667-68
cert.
493 U.S.
1144,
(5th Cir.),
denied,
reh’g
F.2d
1146
cert.
1093,
1166,
110 S.Ct.
F.2d
N.V.
316 F.2d
405-06
Comm’n,
Gloeilampenfabrieken
Energy
v. Atomic
denied,
might
jurisdic-
been
this court
have
III
tion to
that case.
hear
question jurisdiction,
In addition to federal
showing.
has failed to make such a
Accord-
jurisdiction
Dunn-McCampbell has asserted
applicable
ingly, we hold that the
statute of under the Mandamus Act. This statute re-
Dunn-McCampbell’s
limitations
facial
bars
quires exceptional showings that Dunn-
challenge to the 9B
pro-
has not met. The statute
vides that: “The district courts shall have
B
original jurisdiction
action in the na-
applied” challenge
An “as
must rest
compel
ture of mandamus to
an officer or
agency
on final
action under the APA. 5
employee
any agency
of the United States or
(“Agency
§
U.S.C.
action made reviewa
perform duty
plain-
a
thereof
owed to the
agency action
ble
statute and final
tiff.” 28
U.S.C.
remedy
which
is no
in a court
there
are
extraordinary
Mandamus is an
review.”).
subject
judicial
But absent
remedy,
only
government
available
where
of
action,
provide
some “final”
APA will not
clearly
perform
ficials
have failed to
nondis
challenge agency
a cause of action to
deci
cretionary
Group
duties. Pittston Coal
v.
Lujan
sions.
v. National
Federa
Wildlife
Sebben,
105, 121,
414, 424,
488 U.S.
109 S.Ct.
tion,
871, 882,
3177, 3185,
497 U.S.
110 S.Ct.
(1988);
Seamans,
Service before it to its leases JONES, Judge, EDITH H. Circuit in 1986-89. Limitations on certain chal- dissenting: lenges to begin could not to against run Dunn-McCampbell until that respect my colleagues, I am due With time. that the statute of limitations not convinced then, against Dunn-McCampbell only legal question, run in this is what kind I and remand for fur- Dunn-McCampbell case. would reverse of claims could advance Service, proceedings that would elicit when ther after 1986-89 the Park when injured Dunn-McCampbell began acquired standing agree first be to sue. I with the compliance regula- majority with the cost of that the time standing, challenge tions. achieved it could not “procedural” basis for the Park Service’s important clarify, majority as the It is According terminology law, done, that under Texas Dunn- has not developed Circuit, “procedural” the D.C. ways prevented was in two challenges agency’s compliance, address the being able to the Park Service rulemaking requirements with such as notice simply it remained a les- while comment, challenges while “substantive” owner, sor/overriding royalty whose mineral regulation’s compliance attack the with statu- being developed by opera- interest was other tory authority or other substantive deficien- non-possessory was a in- tors. Its interest FLRA, cy. generally N.L.R.B. See Union v. possibility terest with a of reverter when the (D.C.Cir.1987). 195-97 Be- First, leases terminated. the holder of an imperative it is cause to the administrative overriding royalty portion in Texas bears no process procedural challenges posed be costs; production its interest is based *7 newly-promulgated regula- at onset of a the Hence, gross production from the on wells. tion, agency very a number of statutes set Dunn-McCampbell could not have been deadlines, e.g. days, initiating on short charged operating increased costs See, e.g., such claims. id. The Park Service by regulations Park and caused the organic statutory protection, lacks such how- injury standing no that could confer suffered ever, six-year general so the federal limita- Additionally, government. to the sue the governs procedural challenges tions statute operator responsible in Texas is lease ease, party, including in this and no Dunn- prudently developing maintaining and the McCampbell, pursue challenges could these lease, responsibility xnineral a which includes after 1985. obligation pursue to administrative reme- settled, equally It that if dies to benefit the lease. Amoco Production is well (Tex. Alexander, by agency regulation an is not authorized its Co. v. 622 S.W.2d 1981); statute,3 Hemingway, governing party injured by appli- R. Texas Law & a Oil of confusing. challenge nearly necessarily 3. While all the courts that have decided A "facial” basis, analytically procedure, questions distinguished attack the these be- could substantive governing "procedural” regulation’s tween and "substantive” chal- or the statute, subservience to its done, law, lenges, majority prevailing only and under the first as I have identifies absolutely only applied” challenges type "facial” and “as to the of is barred within regulations. majority's terminology periods promul- un- fixed after the statute has been The regulation may cation raise jurisdiction. of the the issue never transferred to federal If statutory correct, period; limitations outside the a this claim is Service has not regulation initially by jurisdiction unauthorized regulate statute had to at all. Dunn pas cannot become authorized McCampbell poses straightforward, mere a albeit sage point legal The complex, readily judi time. divides the issue amenable to majority particular and me is their insistence that the cial review. Under the facts of agency’s statutory case, authority lack of could perverse majority be this it is for the to by Dunn-McCampbell only in require raised defense Dunn-McCampbell spend to a lot of agency an money enforcement action or if time petitioning agency and to company petitions to rescind or authority amend reconsider its simply lay regulations predicate the Park Service and receives for a future lawsuit.5 If Dunn majority McCampbell adverse decision. I differ with the years has sued within six of the “injury” leases, over what kind of from began effectively “ac dates it reacquiring necessary precipitate tion” is the claim. I go would allow this suit to forward. my view, require it is waste time prerequisite to suit that “agency petitioning action” manufacture regulations
the Park Service to revoke its suffering possibly some time —at
remote future —the inevitable rebuff. Dunn
McCampbell claims that the existence of Park Service it renders uneco ESTATE OF Golda E. Rixon operators nomic for new even to bid on KOKERNOT, Deceased, reinstituting production from its Padre Is rights.4 company land mineral seeks Mary LACY, Executrix, Ann Kokernot declaratory judgment regula relief Petitioner-Appellant, may tion’s may onerous effect. This claim well-founded, definitely not be alleges but action, injury by agency occasioned consist COMMISSIONER OF INTERNAL ing REVENUE, overlay of numerous Park Service Respondent- Appellee. constantly changing unpredictable thus nature of the No. 96-60057. Consequently, Dunn-McCampbell if filed suit effectively reacquired within six after it Appeals, United States Court of leases, timely. its its action is Fifth Circuit. We must recall the essence Dunn- May
McCampbell’s legal claim—that when Padre Island Park was transferred to the federal
government, right reg- Texas reserved the gas production
ulate oil and from Dunn- *8 interests,
McCampbell’s mineral which were gated. stances, Despite majority's Duim-McCampbell's failure to ripe conform claim distinction, analytical to the more common I do adjudication. opinion disagree not understand their with those cases. Regulatory See Public v. Nuclear Citizen Comm'n, (D.C.Cir.1990) reason, 4. For this it is not material that Dunn- ("were we to hold in this case that Public Citi- approached has not the Park Ser- zen’s to the lawfulness of the NRC's plans develop According vice with the leases. untimely, action was Public Citizen could file allegations, require to its to do so would petition rulemaking and then raise its claim operator to invest resources in mak- considerable ing good-faith unlawfulness when the Commission denied the opera- estimate of the costs of its petition. requirement tions and Such a would the hindrances caused be a waste resources.”) simply everyone's all this would be done time and —and precipitate a lawsuit. Under these circum-