Tulsa U.S. District Judge Gregory K. Frizzell now must decide whether to allow oil and gas producers in Osage County proceed with their lawsuit against the Bureau of Indian Affairs or dismiss the suit filed in 2015. Both sides, the Osage Producers Association that sued the Bureau of Indian Affairs and the BIA responded Monday to a judge’s order to make filings on or before May 16t on the question of whether the oil and gas operators have exhausted administrative procedures through the BIA.
The producers filed suit last year arguing the government agency was literally putting them out of business by delaying or withholding applications for drilling permits in Osage County, land that is under control of the Bureau of Indian Affairs.
The BIA contends that since its agency action on the permits was not final, the matter could not be decided by the federal courts. Attorneys Lee I. Levinson and James D. Sicking, representing the Osage Producers’ Association, argued their members are suffering “undue prejudice” because of the BIA’s “unreasonable or indefinite timeframe for administrative action.” They contend there is not even a reasonable and definite schedule to handle the permit applications.
“In fact, there are still 20 applications pending before the BIA-Osage Agency, over 8 months after the lawsuit was filed.” They further argued, “because there is no timeline, let alone a “reasonable and definite” timeline, Petitioner’s members can have no reasonable expectation of action by the Agency.”
The two attorneys argued, “any requirements to expend more time and money that what has already been expended would result in further “undue prejudice”, particularly in light of the potential of leases expiring by their own terms for failure to produce during the two year primary term.”
U.S. Attorney Danny C. Williams argued the regulations governing exhaustion of administrative remedies for BIA decisions are unambiguous and that no BIA decision is final if it is still subject to appeal to a superior authority within the Department of the Interior.
In his filing on Monday, Williams pointed to a Tenth Circuit Court of Appeals ruling in 2010 that such an exhaustion requirement is jurisdictional and that a federal court may not assert jurisdiction over a case until the party has exhausted administrative remedies. Thus, argued Williams, the Osage Producers Association “and its members have not exhausted the remedies available.” He said in essence, the court cannot interfere in the case as long as the administrative appeals and steps remain.