from the United States District Court for the Northern
District of Oklahoma (D.C. No. 4:16-CV-00549-JHP-FHM)
A. Lepp (Gentner F. Drummond, Garry M. Gaskins, II, and Logan
L. James with him on the briefs), Drummond Law, PLLC, Tulsa,
Oklahoma, for Merrill Chance, Plaintiff-Appellant.
N. Rountree, Environmental & Natural Resources Division,
United States Department of Justice, Washington, D.C.
(Jeffrey H. Wood, Eric Grant, Mark R. Haag, and Jody H.
Schwarz, Environmental & Natural Resources Division,
United States Department of Justice, Washington, D.C., and
Charles R. Babst, Jr., Kristen D. Kokinos, and Stephen L.
Simpson, Office of the Solicitor, United States Department of
the Interior, Washington, D.C., with her on the brief), for
Ryan Zinke, Darryl LaCounte, and United States Bureau of
Indian Affairs, Defendants-Appellees.
D. Sicking, Jr., Tulsa, Oklahoma (Thomas Mortensen, Tulsa,
Oklahoma, with him on the brief), for Great Southwestern
Exploration, Inc., Defendant-Appellee.
Michael S. Freeman, Earthjustice, Denver, Colorado (Yuting
Chi, Earthjustice, Denver, Colorado, and Don Mason, Attorney
General, Pawnee Nation of Oklahoma, Pawnee, Oklahoma, with
him on the brief) for the Pawnee Nation of Oklahoma and
Walter R. Echo-Hawk, Amici Curiae.
LUCERO, PHILLIPS, and MORITZ, Circuit Judges.
MORITZ, CIRCUIT JUDGE.
Chance, a landowner in Osage County, Oklahoma, sued the
government to void a lease and various permits that
allow Great Southwestern Exploration, Inc. (GSE) to drill for
oil and gas beneath his property. He also seeks damages from
GSE for trespassing on his property. The district court ruled
that Chance's claims against the government were untimely
under 28 U.S.C. § 2401(a); thus, it reasoned, it lacked
subject-matter jurisdiction to hear these claims and
therefore dismissed them. It also dismissed Chance's
claims against GSE.
agree with the district court that Chance's claims
against the government are untimely. But the Supreme Court
has warned us to beware of "profligate use of the term
'jurisdiction.'" Sebelius v. Auburn
Reg'l Med. Ctr., 568 U.S. 145, 153 (2013). Today we
heed that warning and hold that the district court wrongly
concluded it lacked subject-matter jurisdiction over
Chance's claims against the government.
we reverse the district court's order dismissing
Chance's claims against the government for lack of
subject-matter jurisdiction and instruct the district court
to dismiss those claims for failure to state a claim. We
affirm the district court's judgment over Chance's
claims against GSE because, to the extent Chance's claims
against the government fail, the district court properly
declined to exercise supplemental jurisdiction over
Chance's claims against GSE.
controversy surrounding Chance's property stems from the
government's unusual presence in Osage County. Before the
turn of the twentieth century, Osage County was a tribal
reservation belonging to the Osage Nation. See Osage
Nation v. Irby, 597 F.3d 1117, 1120 (10th Cir. 2010).
But Congress disestablished the reservation in 1906 upon
Oklahoma's induction into the union. See id. At
the same time, Congress severed the surface estate from its
subterranean mineral estate. Id. It divided the
surface estate and distributed most of the parcels to tribal
members. Id. at 1120-21. But importantly, the
government retained the subterranean estate in trust for the
Osage Nation's benefit. See id. at 1120.
Department of Interior regulations task the Osage Agency of
the BIA with managing this trust. See 25 C.F.R.
§§ 226.1-226.46. These regulations give the Osage
Agency authority to lease tracts of the subterranean estate,
with the Osage Tribal Council's permission. §
226.2(b). The Osage Agency exercises significant oversight
over these leases. Among other responsibilities, it must
approve all new oil leases, id.; assignments of
existing leases, § 226.15(b); and drilling permits,
is the surface owner of a tract of land in Osage County. In
1963, the Osage Agency granted the Eason Oil Company (Eason)
an oil lease for deposits underlying Chance's property.
Eason drilled two wells in 1964 that remain in operation
today. With the BIA's approval, Eason assigned its lease
to GSE in 1991. The BIA granted GSE permits to drill three
new wells that same year. Two of these wells remain in
operation. Chance maintains that the construction and
operation of these wells has damaged his surface property in
various ways over the years.
October 2016-25 years after Eason assigned its lease to GSE
and the BIA granted GSE permits to drill new wells on the
lease-Chance filed this lawsuit. He argued that 42 U.S.C.
§ 4332(c), part of the National Environmental Policy Act
(NEPA) of 1969, required the Osage Agency to conduct
site-specific environmental-impact assessments before
approving Eason's assignment to GSE and GSE's new
drilling permits. And he alleged that the Osage Agency never
conducted these assessments. Chance also asserted that the
Osage Agency failed to notify his predecessors-in-interest
that it approved the new permits. Further, he contended that
the Osage Agency improperly took various other unknown
actions related to his property without conducting
site-specific environmental-impact assessments or notifying
him or his predecessors-in-interest.
Chance asserted that the Osage Agency's failure to comply
with NEPA reflects systemic problems. He alleged that for
decades, the Osage Agency had been relying only on an
assessment it conducted in 1979 that evaluated the general
impact of the Osage County drilling program rather than
conducting site-specific environmental-impact assessments, as
Chance argued NEPA requires. Chance further alleged that the
Osage Agency attempted to conceal its noncompliance with
government moved to dismiss Chance's claims against it
for lack of subject-matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1), and GSE moved to dismiss
Chance's claims against it for failure to state a claim
under Rule 12(b)(6). The district court granted both motions.
It first ruled that Chance's claims against the
government were untimely under § 2401(a), which
establishes a six-year statute of limitations for nontort
claims against the government. Chance urged the district
court to equitably toll § 2401(a)'s limitations
period. But the district court determined that § 2401(a)
is a jurisdictional bar and thus not subject to equitable
tolling. Alternatively, it ruled that Chance wasn't
entitled to equitable tolling under the facts of this case.
The district court further ruled that Chance failed to
exhaust his administrative remedies. And it denied
Chance's motion for jurisdictional discovery.
district court then concluded that Chance's claims
against GSE necessarily relied on his claims against the
government, so it granted GSE's Rule 12(b)(6) motion. It
alternatively declined to exercise supplemental jurisdiction
over Chance's claims against GSE and dismissed for lack
of subject-matter jurisdiction. Chance appeals the ...