In the United States Court of Federal Claims

No. 18-972C

(Filed: March 18, 2020)

BP EXPLORATION & PRODUCTION 

INC.,

Plaintiff,

v.

UNITED STATES,

Defendant,

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Suit to recover leasehold royalty 

overpayments and interest; Federal Oil 

and Gas Royalty Management Act, 30 

U.S.C. §§ 1701-59, as amended by the 

Federal Oil and Gas Royalty 

Simplification and Fairness Act and the 

Fixing America’s Surface 

Transportation Act of 2015; statutory 

interpretation; Federal Savings Statute, 1 

U.S.C. § 109

Jonathan A. Hunter, Jones Walker LLP, New Orleans, Louisiana, for plaintiff. With him 

on the briefs was Sarah Y. Dicharry, Jones Walker LLP, New Orleans, Louisiana.

Tanya B. Koenig, Trial Attorney, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, Washington, D.C., for defendant. With her on the briefs were 

Joseph H. Hunt, Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr., 

Director, and Allison Kidd-Miller, Assistant Director, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, D.C. Of counsel was David 

Kearney, Attorney-Advisor, Rocky Mountain Regional Solicitor’s Office, United States

Department of the Interior, Lakewood, Colorado.

OPINION AND ORDER

LETTOW, Senior Judge.

Plaintiff BP Exploration & Production, Inc. (“BP”) has brought suit against the United 

States (the “government”) acting through the Department of the Interior’s Office of Natural 

Resources Revenue (“ONRR”) to recover overpayments of royalties made to the government 

pursuant to lease agreements on oil and gas leases in the Gulf of Mexico. The government 

refunded some, but not all, of the overpaid royalties claimed by BP and refused to pay interest on 

the amount refunded. This dispute turns on dueling interpretations of complex, interrelated 

sections of Title 30 of the United States Code concerning royalty disputes, specifically those 

adopted as part of the Federal Oil and Gas Royalty Management Act of 1982 (“Royalty 

Management Act”), Pub. L. No. 97-451, 96 Stat. 2447 (codified at 30 U.S.C. § 1701-59), as 

amended by the Federal Oil and Gas Royalty Simplification and Fairness Act (“Royalty 

Simplification Act”), Pub. L. No. 104-185, 110 Stat. 1700 (1996). 
2

 On April 8, 2019, the court denied the government’s motion for dismissal on 

jurisdictional grounds and set a legal framework for consideration of the merits. See generally

BP Expl. & Prod., Inc. v. United States, 142 Fed. Cl. 579 (2019). The United States then filed 

the administrative record on July 22, 2019, see ECF No. 30, and BP subsequently filed a motion 

for judgment on the administrative record, see Pl.’s Mot. for Judgment on the Admin. R. (“Pl.’s 

Mot.”), ECF No. 37. The issues have been fully briefed, see Def.’s Resp. and Cross-Mot. for 

Judgment on the Admin. R. (“Def.’s Cross-Mot.”), ECF No. 42; Pl.’s Reply & Resp. to Def.’s 

Mot. (“Pl.’s Resp.”), ECF No. 43; Def.’s Reply to Pl.’s Resp. (“Def.’s Reply”), ECF No. 44, and 

the court held a hearing on March 3, 2020. 

The court concludes that BP timely filed its claim because the seven-year statute of 

limitations set out at 30 U.S.C. § 1724(b)(1) governs here. And, because the amendments related 

to interest in Fixing America’s Surface Transportation Act of 2015 (“FAST Act”), Pub. L. No. 

114-94, Div. C, Title XXXII, § 32301, 129 Stat. 1312, do not apply retroactively and did not 

curtail the accrual of interest on preexisting obligations, BP is also entitled to collect the interest 

that accrued from the time BP made its overpayments until those payments were or are refunded. 

Accordingly, BP’s motion for judgment on the administrative record is GRANTED and the 

government’s cross-motion is DENIED.

FACTS1

A. The Royalty Payment Audit

BP and the United States are party to lease agreements pertaining to oil and gas fields 

situated in the Gulf of Mexico, and pursuant to those agreements, BP is obligated to pay the 

United States royalties in proportion to the value of oil and gas it produces from those fields. See

Def.’s Cross-Mot. at 5. Regulations promulgated by ONRR authorized BP to reduce the value of 

oil and gas produced, and thus the amount of royalties owed, by deducting allowable expenses, 

including some costs relating to transportation infrastructure and operation. Id.; Pl.’s Mot. at 9-

10. 

The Royalty Management Act vested the Department of the Interior with authority to 

“implement and maintain a royalty management system for oil and gas leases.” 30 U.S.C. §

1701(b)(2). Subsequently, the Royalty Simplification Act added procedures for conducting 

audits and requesting corrections of overpayments and underpayments. See Pub. L. 104-185, 

110 Stat. 1700. The latter Act also set a limitation on the amount of time for the agency to issue 

a final decision on demands by lessees. See id. The Royalty Simplification Act authorized

lessees to recover interest on overpayment refunds, but that provision was repealed nearly two 

decades later by the enactment of the FAST Act § 32301. 

On February 7, 2009, ONRR initiated “an audit of transportation allowances deducted 

from royalties paid on [f]ederal offshore properties transported through [BP’s] Na Kika Subsea 

 

1The recitations that follow constitute findings of fact by the court from the 

administrative record filed pursuant to Rule 52.1(a) of the Rules of the Court of Federal Claims 

(“RCFC”). 
3

Complex” during the 2006 calendar year. AR 2-3.2 In the course of that audit, ONRR expanded 

its scope to include the period January 1, 2004 through December 31, 2007 and to cover 

additional BP properties. AR 49-399. The transportation allowances BP had reported on a 

monthly basis for these periods were estimations, and BP intended to revise its original filings 

within the applicable adjustment period to include costs that it had not previously deducted. See 

AR 57-564. Throughout the course of the audit, BP communicated to ONRR’s auditors that it 

intended to include these additional costs in the transportation allowances. AR 57-564. Because 

such adjustments were anticipated during the audit, some increasing and others decreasing the 

amount of the allowance, the parties agreed that BP would wait to submit formal adjustment 

requests until both sides had consulted and agreed on the necessary alterations, thereby 

streamlining the process. AR 57-573. 

The Royalty Management Act imposes limitations on the periods in which the 

government and BP may seek corrections to past royalty payments. See 30 U.S.C. §§ 

1721a(a)(4) (setting a six-year adjustment period),31724(b)(1) (setting a seven-year limitation 

period).4 The statute also permits the government and a lessee to toll the applicable period by a 

 

2The administrative record is consecutively paginated, and citations to the record are 

cited by tab and page as “AR __-__.” 

3Paragraph 1721a(a)(4) provides:

(4) For purposes of this section, the adjustment period for any obligation shall be the 

six-year period following the date on which an obligation became due. The 

adjustment period shall be suspended, tolled, extended, enlarged, or terminated by 

the same actions as the limitation period in section 1724 of this title. 

30 U.S.C. § 1721a(a)(4).

4Subsection 1724(b) provides:

(b) Limitation period

(1) In general

A judicial proceeding or demand which arises from, or relates to an 

obligation, shall be commenced within seven years from the date on which the 

obligation becomes due and if not so commenced shall be barred. If 

commencement of a judicial proceeding or demand for an obligation is barred 

by this section, the Secretary, a delegated State, or a lessee or its designee (A) 

shall not take any other or further action regarding that obligation, including 

(but not limited to) the issuance of any order, request, demand or other 

communication seeking any document, accounting, determination, calculation, 

recalculation, payment, principal, interest, assessment, or penalty or the 

initiation, pursuit or completion of an audit with respect to that obligation; and 

(B) shall not pursue any other equitable or legal remedy, whether under statute 
4

written agreement. 30 U.S.C. §§ 1721a(a)(4), 1724(d). Between 2010 and 2013, BP and ONRR 

executed a series of seven agreements tolling statutes of limitations, including those in Paragraph 

1721a(a)(4) and Subsection 1724(d). See generally AR 9. Executed November 19, 2010, the 

first agreement applied to the Na Kika properties and tolled the period from November 1, 2003 

through December 31, 2010. AR 9-45. The second, third, fourth, and sixth agreements covered 

the so-called “Deepwater Properties” (which collectively refers to a series of different properties 

subject to BP leases) from January 1, 2004, see AR 9-46, through February 15, 2014, see AR 9-

53.5 The fifth and seventh agreements covered the Mad Dog property from April 1, 2006, see

AR 9-52, through February 15, 2014, see AR 9-55. In sum, the agreements tolled the statute of 

limitations for the Na Kika properties from November 1, 2003 through February 15, 2014; the 

Deepwater Properties from January 1, 2004 through February 15, 2014; and the Mad Dog 

property from April 1, 2006 through February 15, 2014. None of the agreements included the 

Mica property. AR 71-1123. 

ONRR notified BP via email on July 13, 2013 that it was closing the audit and would 

send BP the audit report. See AR 35-360. Issued on November 18, 2013, the report summarized 

ONRR’s conclusions concerning BP’s underpayments and directed BP to “complete and 

report/adjust transportation allowance[s] for Na Kika from January 2008 forward and for other 

Federal Offshore Deepwater properties from January 2004 forward.” AR 57-753. After issuing 

the audit report, ONRR continued to make inquiries about audit-related matters as late as June 

2014, see, e.g., AR 57-583, leading BP to assert that the audit proceeded until at least that time, 

see Pl.’s Mot. at 14. 

B. BP’s Refund Demands

In August 2013, before ONRR issued the audit report, the auditors informed BP that they 

interpreted the tolling agreements to operate in a one-sided fashion by extending the time for 

ONRR to recover royalty underpayments but not the time for BP to recover overpayments. See 

AR 57-579. Although the ONRR Director would later reject this interpretation of the tolling 

agreements, the communication engendered concerns for BP that its right to overpayment 

refunds could end up being time-barred, leading to BP’s decision to submit two refund demands 

outside of the audit process. See Pl.’s Mot. at 14. On November 13, 2013, BP sent a letter to the 

Secretary of the Interior and the Director of ONRR demanding a refund of $6,955,581.89 plus 

interest for royalty overpayments related to the Na Kika and Holstein properties for January 2004 

 

or common law, with respect to an action on or an enforcement of said 

obligation.

30 U.S.C. § 1724(b) (emphasis added).

5Several of the tolling agreements covering the Deepwater Properties clarify the precise 

properties included within that collective grouping by furnishing an attachment containing a 

listing of the individual properties and related lease identification numbers. See, e.g., AR 9-51. 

Encompassed within the Deepwater Properties are the Na Kika properties and the Holstein 

property, but the Mad Dog and Mica properties are not among the Deepwater Properties. See 

AR 9-51. 
5

through August 2007. See AR 51-438, 442. BP sent a second letter on February 12, 2014, 

demanding a refund of $6,619,730.51 plus interest for royalty overpayments for January 2004 

through December 2007. See AR 52-453. The leases at issue in the second demand included 

several Deepwater Properties, the Mad Dog and Mica properties, and additional refunds 

attributable to the Holstein property. See AR 52-458. The refunds BP demanded related to 

deductible transportation costs that had not been previously deducted but were identified 

although not addressed during the audit. AR 57-580 to 581. Both letters stated that they should 

be considered “a formal ‘demand’ for purposes of 30 U.S.C. §§ 1721a(b)(1)(A) and 1724(b)(1).” 

AR 51-438; AR 52-453. 

In February and June 2014, ONRR sent letters partially granting BP’s refund demands 

but denying them insofar as they included costs incurred outside a statute of limitations. See

generally AR 54; AR 55. ONRR never disputed that the costs in question qualified as deductible 

transportation costs, only that some of the demands were untimely. AR 57-581. Declining to 

concede the effectiveness of the tolling agreements in preserving those claims, ONRR asserted 

that the agreements only operated in favor of the government’s claims for underpayments and 

would therefore not preserve BP’s claims for overpayments. See AR 54-478; AR 55-507. 

Applying the seven-year period specified in Section 1724(b), ONRR concluded that BP could 

only receive refunds for overpayments made within seven years of its demand. See AR 54-478; 

AR 55-507. 

Accordingly, ONRR denied refunds for costs incurred more than seven years from the 

dates of BP’s requests but granted those within that time. See AR 54-478; AR 55-507. 

Therefore, regarding BP’s November 2013 claim covering the Na Kika and Holstein properties, 

ONRR granted refunds for October 2006 through August 2007, but rejected refunds covering 

January 2004 through September 2006. AR 54-475. Regarding BP’s February 2014 claim for 

the Deepwater, Holstein, Mad Dog, and Mica properties, ONRR granted refunds for January 

2007 through December 2007, but rejected refunds for January 2004 through December 2006. 

AR 55-503. In total, ONRR refunded BP $5,556,497.32 of the $13,575,312.40 claimed, plus 

interest. AR 74-1161. BP appealed the decision to the ONRR Director in October 2014. See

AR 74. 

C. The Appeal to the Director of ONRR

Three years after BP filed its appeal, on December 11, 2017, the ONRR Director issued a 

decision granting partial relief. See AR 71-1118. While the decision resulted in a net benefit for 

BP, it reversed some of the relief that had been granted by ONRR’s initial decision. First, the 

Director rejected ONRR’s one-sided interpretation of the tolling agreements, concluding that the

agreements bilaterally preserved both ONRR’s ability to demand payment of royalties and BP’s 

ability to request refunds. See AR 71-1127 to 1128. Second, under that bilateral interpretation 

of the tolling agreements, the Director then addressed which of the two limiting time periods 

applied to BP’s refund demands. Recognizing the effect of adopting one period over the other, 

he noted that BP’s demands “would be timely for all months if subject to the seven-year 

limitation period in 30 U.S.C. § 1724(b)(1) . . . . [, b]ut if the six-year adjustment period . . . 

applies, some months would still be untimely.” AR 71-1128. 
6

Reversing ONRR’s initial decision, the Director concluded that the pertinent statute of 

limitations was not the seven-year limitation period of Paragraph 1724(b)(1) but the six-year 

adjustment period of Paragraph 1721a(a)(4). See AR 71-1131. That conclusion rested on the 

premise that “[t]o allow all lessee refund requests as long as the request was within seven years 

after the obligation becomes due would render § 1721a superfluous and meaningless.” AR 71-

1129 (emphasis in original). Instead, the Director reasoned that “a lessee may request a refund 

after the six-year adjustment period, as extended by any tolling agreement, only if it meets the 

requirements outlined in § 1721a(a)(3).” AR 71-1129. (emphasis in original). That paragraph 

contains three requirements: (1) the lessee must provide written notice to the Secretary; (2) the 

request must be made during an audit of the period which includes the production month for 

which the adjustment is made; and (3) the Secretary must approve the request. See 30 U.S.C. § 

1721a(a)(3).6 The Director rejected BP’s position that the audit extended well into 2014, noting 

that the government’s requests for information after it notified BP that it was closing the audit in 

July 2013 simply sought to verify corrections BP had provided during the audit. See AR 71-

1131. Accordingly, the Director concluded that because BP’s November 2013 and February 

2014 demands occurred after the audit closed in July 2013, it “did not meet § 1721a(a)(3)’s 

requirement that any refund request submitted after the adjustment period be made during an 

audit of the production month at issue.” AR 71-1130 to 1131. Having ruled that the seven-year 

period did not apply to BP’s refund demands, the Director applied the six-year period, finding 

ineligible for refund the first five months of the Na Kika demand, the first nine months of the 

2013 Holstein demand, and the first twelve months of the Deepwater Properties demand. AR

71-1134. Additionally, the remaining months previously excluded by the unilateral 

interpretation of the tolling agreements were now deemed eligible, see AR 71-1128, and the 

Director accordingly granted a refund of $6,736,368, leaving $1,282,447 not refunded, see BP 

Expl. & Prod., Inc., 142 Fed. Cl. at 587. Notably, had the seven-year period rather than the sixyear period been applied, the remaining $1,282,447 disallowed by the Director would have been 

timely. Id.

The Director next turned to refunds relating to the Mica and Mad Dog properties that 

ONRR had previously allowed. Noting that no tolling agreement covered the Mica property, the 

Director determined that the refund demand was untimely, thereby disallowing any refund 

associated with that property. See AR 71-1132 to 1133. Similarly, the Mad Dog property was 

listed in the May 2013 and December 2013 tolling agreements, but the Director noted that the 

extended adjustment period from the time of BP’s February 2014 demand only reached back to 

 

6Paragraph 1721a(a)(3) provides:

(3) An adjustment or a request for a refund for an obligation may be made 

after the adjustment period only upon written notice to and approval by the Secretary 

or the applicable delegated State, as appropriate, during an audit of the period which 

includes the production month for which the adjustment is being made. If an 

overpayment is identified during an audit, then the Secretary or the applicable 

delegated State, as appropriate, shall allow a credit or refund in the amount of the 

overpayment.

30 U.S.C. § 1721a(a)(3).
7

the last nine months of 2007, but ONRR had granted the refund request for production months 

January through March 2007. See AR 71-1133. Therefore, the Director disallowed the 

previously approved refund relating to the Mad Dog property for January through March 2007. 

Acting on those determinations, the Director held that ONRR’s initial refund of $254,338 

relating to these properties was improper and had to be returned to the government. See BP 

Expl. & Prod., Inc., 142 Fed. Cl. at 587. This outcome also assumed the application of the sixyear limitation period, but had the seven-year period urged by BP been applied, the request 

would have been timely, and BP would not have been obligated to return the $254,338. Id.

Finally, the Director addressed whether BP was entitled to interest on the $6,736,368 

refunded pursuant to the appeal. In December 2015, while BP’s appeal before the ONRR 

Director was pending, Congress passed the FAST Act, which amended 30 U.S.C. § 1721 by 

repealing the provisions that had previously authorized ONRR to pay interest on royalty 

overpayment refunds. See FAST Act § 32301; see also 30 U.S.C. § 1721(h) (2012).7 The 

Director noted that the Anti-Deficiency Act, codified in part at 31 U.S.C. § 1341(a)(1)(A), 

prohibits federal agencies from making any expenditure not authorized by law, and he reasoned 

that because the FAST Act repealed ONRR’s statutory authority to pay interest on royalty 

overpayment refunds, the Anti-Deficiency Act therefore prohibited ONRR from paying interest 

on refunds granted after the FAST Act’s effective date, even if such refunds were requested and 

interest had accrued prior to that time. AR 71-1131 to 1132. Consequently, the Director 

declined to award BP interest on the additional refund. AR 71-1132. Notably, the FAST Act 

was enacted during the pendency of BP’s appeal to the ONRR Director; thus, had ONRR 

 

7Before repeal, Subsection 1721(h) provided:

(h) Lessee or designee interest

Interest shall be allowed and paid or credited on any overpayment, with such interest 

to accrue from the date such overpayment was made, at the rate obtained by 

applying the provisions of subparagraphs (A) and (B) of section 6621(a)(1) of Title 

26, but determined without regard to the sentence following subparagraph (B) of 

section 6621(a)(1). Interest which has accrued on any overpayment may be applied 

to reduce an underpayment. This subsection applies to overpayments made later 

than six months after August 13, 1996, or September 1, 1996, whichever is later. 

Such interest shall be paid from amounts received as current receipts from sales, 

bonuses, royalties (including interest charges collected under this section and rentals 

of the public lands and the Outer Continental Shelf under the provisions of the 

Mineral Leasing Act [30 U.S.C.A. § 181 et seq.], and the Outer Continental Shelf 

Lands Act [43 U.S.C.A. § 1331 et seq.], which are not payable to a State or the 

Reclamation Fund. The portion of any such interest payment attributable to any 

amounts previously disbursed to a State, the Reclamation Fund, or any other 

recipient designated by law shall be deducted from the next disbursements to that 

recipient made under the applicable law. Such amounts deducted from subsequent 

disbursements shall be credited to miscellaneous receipts in the Treasury.

30 U.S.C. §1721(h) (2012).
8

initially interpreted the tolling agreements in a bilateral manner, as the Director did on appeal, 

the interest on these subsequently refunded amounts would presumably have been paid out in 

2014 prior to the enactment of the FAST Act. See Pl.’s Mot. at 17. 

D. The Appeal to the Interior Board of Land Appeals

BP appealed the Director’s decision to the Interior Board of Land Appeals (“Board of 

Land Appeals”). See AR 74. The Royalty Management Act provides that if the Secretary of the 

Interior (the “Secretary”) does not issue a final decision within 33 months from the date the 

proceeding commences, the Secretary is presumed to have issued a decision affirming the 

agency’s prior decision. 30 U.S.C. § 1724(h). That 33-month period ended in early 2018, and 

the Board of Land Appeals accordingly dismissed the appeal for lack of jurisdiction on June 21, 

2018. See AR 84. The Secretary was therefore deemed to have affirmed the Director’s decision 

(1) denying BP’s refund demand of approximately $1,282,447 based on the application of the 

six-year rather than the seven-year limitations period; (2) requiring that BP return approximately 

$254,338 relating to the Mad Dog and Mica refunds previously granted by ONRR; and (3) 

denying interest attributable to overpayment refunds that had been disallowed by ONRR based 

on a unilateral interpretation of the tolling agreements but permitted by the Director based on a 

bilateral interpretation. BP sought judicial review in this court on July 6, 2018.8 

STANDARDS FOR DECISION

A. Review in Accord with the Administrative Procedure Act

Under the Rules of the Court of Federal Claims, “[w]hen proceedings before an agency 

are relevant to a decision in a case, the administrative record of those proceedings must be 

certified by the agency and filed with the court.” RCFC 52.1(a). A claim made pursuant to a 

money-mandating statute invokes this court’s Tucker Act jurisdiction, 28 U.S.C. § 1491, and 

when such a claim challenges agency action, the court must proceed by reviewing the agency’s 

decision under the standards of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, 

rather than conducting a de novo determination of the facts. See BP Expl. & Prod., Inc., 142 

Fed. Cl. at 593. Here, as previously noted in the court’s prior decision denying the government’s 

motion to dismiss, “the court is exercising jurisdiction under the Tucker Act, and will review the 

underlying agency decision pursuant to the standards of the APA and RCFC 52.1, just as it 

would for a government procurement case or a military pay or disability case.” Id. 

This court reviews decisions of the Board of Land Appeals under the same standards it 

applies in other types of cases implicating the APA. See Foote Mineral Co. v. United States, 654 

F.2d 81, 85 (Ct. Cl. 1981). Under the APA, the court may set aside an agency decision if it is 

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. 

§ 706(2)(A). An agency’s action is arbitrary and capricious if the agency “relied on factors 

which Congress has not intended it to consider, entirely failed to consider an important aspect of 

 

8BP’s suit in this court was timely. A lessee may seek judicial review within 180 days of 

receipt of notice of final agency action. See 30 U.S.C. § 1724(h)(2), (j).
9

the problem, offered an explanation for its decision that runs counter to the evidence before the 

agency, or is so implausible that it could not be ascribed to a difference in view or the product of 

agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 

(1983). In conducting its review, “[t]he court may not ‘substitute its judgment for that of the 

agency,’” Hyperion Inc. v. United States, 115 Fed. Cl. 541, 550 (2014) (quoting Keeton Corrs., 

Inc. v. United States, 59 Fed. Cl. 753, 755 (2004) (in turn quoting Citizens to Preserve Overton 

Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on other grounds as recognized in 

Califano v. Sanders, 430 U.S. 99, 105 (1977))), and “must uphold an agency’s decision against a 

challenge if [it] ‘provided a coherent and reasonable explanation of its exercise of discretion,’” 

id. (citing Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009)). 

B. Standards for Evaluating on Agency’s Interpretation of a Statute

The Chevron doctrine sets forth a two-part inquiry which this court must generally apply 

when reviewing agency interpretations of a statute. Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984); see also PDS Consultants, Inc. v. United States, 907 F.3d 

1345, 1355 (Fed. Cir. 2018). Under Chevron, a court reviewing an agency’s construction of a 

statutory provision that it administers must first determine “whether Congress has directly 

spoken to the precise question at issue.” 467 U.S. at 842. If Congress has done so, the analysis 

goes no further, and the reviewing court must give effect to the unambiguous intent of Congress. 

Id. at 842-43. In other words, the reviewing court owes an agency’s interpretation no deference 

unless it is unable to discern the meaning of the statute after “employing traditional tools of 

statutory construction.” SAS Inst., Inc. v. Iancu, ___ U.S. ___, ___, 138 S. Ct. 1348, 1358 (2018) 

(quoting Chevron, 467 U.S. at 843 n.9). If, however, the statute is ambiguous, capable of more 

than one reasonable interpretation, then the court must proceed to the second step of the Chevron 

analysis and defer to the agency’s construction of the statute so long as it is a reasonable one. 

Chevron, 467 U.S. at 843. 

ANALYSIS

A. Statutory Interpretation

The government does not dispute that BP’s refund demands would have been appropriate 

had they been timely. Indeed, if the ONRR Director—after reversing ONRR and concluding that 

the tolling agreements were bilateral—had applied the same seven-year period that ONRR 

initially considered relevant, then the demands would have been timely, and the Director would 

presumably have granted BP’s demands.9 Instead, the Director rejected ONRR’s initial reading 

of the statutory provisions and applied the six-year period, thereby rejecting the claims as 

untimely even when applying the tolling agreements bilaterally. Therefore, whether BP is 

 

9Both the ONRR Director’s decision and the government in this litigation concede that 

the requests “would be timely for all months if subject to the seven-year limitation period in 30 

U.S.C. § 1724(b)(1), as extended by the tolling agreements,” AR 71-1128; see also Hr’g Tr. 

64:3-8 (Mar. 3, 2020).

The date will be omitted from further citations to the transcript of this hearing.
10

entitled to recover its asserted royalty overpayment refunds hinges ultimately on which statute of 

limitations applies to BP’s demands, and that question is a matter of statutory interpretation. 

1. Deference.

The government asserts that the statutory framework unambiguously supports its reading 

but maintains that even if the court disagrees and finds the statute ambiguous, then it is obligated 

pursuant to Chevron to defer to the agency’s reasonable construction of the relevant statutory

provisions. See Def.’s Cross-Mot. at 18-19. BP counters that the unambiguous meaning is just 

the opposite of what the government posits but asserts that, regardless, the agency’s 

interpretation does not warrant deference. See Pl.’s Reply at 3-4. Instead, if the court finds the 

statutes to be ambiguous, BP would have it decline to apply Chevron because the agency has 

been inconsistent in its approach. Id. 

The underlying rationale of the Chevron doctrine is that a statutory ambiguity might

represent an implied congressional delegation of authority for the agency to fill gaps and provide 

further elucidation of meaning, rendering the agency’s ensuing interpretation binding on courts 

“unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the 

statute.” United States v. Mead Corp., 533 U.S. 218, 227 (2001) (citations omitted). Based upon

that premise, “[t]he fair measure of deference to an agency administering its own statute has been 

understood to vary with circumstances,” and among the factors courts consider in making that 

determination is the consistency of the agency’s position. Id. at 228 (citation omitted); see also 

Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) 

(“[T]he thoroughness, validity, and consistency of an agency’s reasoning are factors that bear 

upon the amount of deference to be given an agency’s ruling.”). Well before the Chevron 

regime—when courts respected agency interpretations while likewise retaining authority to 

exercise independent judgment over them—an interpretive pedigree carried significance, and the 

Supreme Court “declined to give weight to executive interpretations” that had “not been 

uniform.” Baldwin v. United States, 589 U.S. __, __, 140 S. Ct. 690, 693, (2020) (Thomas, J., 

dissenting from denial of certiorari) (quoting Merritt v. Cameron, 137 U.S. 542, 552 (1890)). 

Thus, post-Chevron, “[a]n agency interpretation of a relevant provision which conflicts with the 

agency’s earlier interpretation is ‘entitled to considerably less deference’ than a consistently held 

agency view.” Immigration and Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 446 

n.30 (1987) (quoting Watt v. Alaska, 451 U.S. 259, 273 (1981)). Nonetheless, inconsistent 

interpretations do not necessarily render Chevron inapplicable per se because “[h]ow much 

weight should be given to the agency’s views . . . will depend on the facts of individual cases.” 

Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993) (citation omitted). 

Here, the circumstances of the agency’s inconsistent interpretations counsel against 

affording it deference. To begin, the Director’s decision itself constituted a reversal of ONRR’s 

previous decision to apply the seven-year period rather than the six-year period in this very case. 

And that change by the Director constituted a reversal of what had apparently been ONRR’s 

typical approach. BP identifies at least three occasions where ONRR reflexively applied the 

seven-year period of Section 1724(b) in denying refund demands that extended back further than 
11

seven years. See Pl.’s Reply Exs. 1-3.10 Notably, in each of these cases, applying the longer 

period was hardly a moot point because application of the six-year period would have resulted in 

a smaller refund. See id. 

Furthermore, the inconsistency in this instance represents a change implicating the 

agency’s own financial interest. The Director adopted an interpretation that was both contrary to 

its prior approach and redounded to ONRR’s financial benefit by narrowing its liability for

overpayment refunds. See Amalgamated Sugar Co. LLC v. Vilsack, 563 F.3d 822, 834 (9th Cir. 

2009) (noting that, while not an automatic rebuttal of deference, “[w]here an agency interprets or 

administers a statute in a way that furthers its own administrative or financial interests, the 

agency interpretation must be subject to greater scrutiny”).

In sum, the Director’s decision respecting applicability vel non of the statutes of 

limitations will not be accorded deference. 

2. The government’s and BP’s conflicting interpretations.

In this court, the government and BP offer conflicting readings of the statutory provisions 

at issue. BP’s construction begins by differentiating two “categorically different types” of refund 

requests: an informal request for refund under Subsection 1721a(a) and a formal demand under

Subsections 1721a(b) and 1724(b). See Pl.’s Mot. at 21. BP asserts that an informal request for 

refund under Paragraph 1721a(a)(1)11 must be made within the six-year adjustment period12

 

10Somewhat cryptically, the government counters that these three decisions “do not 

provide sufficient information to determine whether the six-year adjustment period would apply 

under ONRR’s interpretation,” Def.’s Reply at 5 n.3, by which it apparently means that the 

letters do not indicate whether audits of the relevant periods were ongoing when these demands 

were made. But the government’s oblique attempt to disregard these letters fails to support its

assertion. On their face, the letters nowhere suggest that the demands related to audits. 

The three decisions are set out in letters, as follows: (1) Letter from Robert Prael, 

ONRR, to Kyle Silvio, Exxon Mobil (Mar. 5, 2015); (2) Letter from Robert Prael, ONRR, to 

Sharon Rodgers, Exxon Mobil (July 14, 2015); (3) Letter from Robert Prael, ONRR, to Ross 

Lanzini, Exxon Mobil (Apr. 18, 2014). These letters and attendant correspondence are set out as 

exhibits to BP’s reply.

11Paragraph 1721a(a)(1) provides in part that, “If, during the adjustment period, a lessee 

. . . determines that an adjustment or refund request is necessary to correct an underpayment or 

overpayment of an obligation, the lessee . . . shall make such adjustment or request a refund 

within a reasonable period of time and only during the adjustment period.” 

12Paragraph 1721a(a)(4) provides that, “For purposes of this section, the adjustment 

period for any obligation shall be the six-year period following the date on which an obligation 

became due.” 
12

subject to an extension beyond that time allowed for ongoing audits in Paragraph 1721a(a)(3).13 

Id. at 21-23. Alternatively, as BP would have it, a formal demand under Subsection 1721a(b)

“must satisfy formalities not required for a refund request under S[ubs]ection 1721a(a),” id. at 

21, and must be made within the seven-year limitation period set forth in Paragraph 1724(b)(1).14 

The formalities required for a request to qualify as a formal demand are listed in Subparagraphs

1721a(b)(1)(A)-(D): the request must “(A) [be] made in writing to the Secretary and, for 

purposes of section 1724 of this title, [be] specifically identified as a demand; (B) identif[y] the 

person entitled to such refund; (C) provide[] the Secretary information that reasonably enables 

the Secretary to identify the overpayment for which such refund is sought; and (D) provide[] the 

reasons why the payment was an overpayment.” 30 U.S.C. § 1721a(b)(1)(A)-(D). 

BP supports drawing a distinction between requests for refund under Subsection 1721a(a) 

and formal demands under Subsection 1721a(b) in several ways, but it might well have

summarized its arguments by resort to an incisive adage—things that are different are not the 

same. First, BP notes that Subsection 1721a(b) expressly cross-references Section 1724 while 

Subsection 1721a(a) makes no mention of it. See Pl.’s Mot. at 21. Second, it emphasizes the 

difference in required formalities between the two subsections, noting that, quite unlike 

Subsection 1721a(b), a refund request under Subsection 1721a(a) “need not satisfy any 

formalities (other than when made after six years, having to be in writing).” Id. Third, the 

method for refunding royalty overpayments differs with respect to each subsection. Id. While 

Paragraph 1721a(a)(3) simply directs “the Secretary [of Interior] . . . [to] allow a credit or refund 

in the amount of the overpayment,” Paragraph 1721a(b)(2) requires instead that the Secretary of 

the Treasury make the refund, but only after the Secretary of Interior certifies the amount to be 

paid, and then provides relatively detailed accounting guidance, specifying the precise sources 

from which the funds are to be paid. Id. Fourth, BP points to the particular legal consequences 

triggered by a Subsection 1721a(b) demand but not a Subsection 1721a(a) request. Id. BP 

identifies that these include (1) qualification as a “demand” under 30 U.S.C. § 1702(23);15 (2) a 

 

13Paragraph 1721a(a)(3) provides that, “An adjustment or a request for a refund for an 

obligation may be made after the adjustment period only upon written notice to and approval by 

the Secretary . . . during an audit of the period which includes the production month for which the 

adjustment is being made.” 

14Paragraph 1724(b)(1) provides in part that a “demand which arises from, or relates to an 

obligation, shall be commenced within seven years from the date on which the obligation 

becomes due and if not so commenced shall be barred.” 

15A demand is defined in part as:

a separate written request by a lessee or its designee which asserts an obligation due 

the lessee or its designee that provides a reasonable basis to conclude that the 

obligation in the amount of the demand is due and owing, but does not mean any 

royalty or production report, or any information contained therein, required by the 

Secretary or a delegated State.

30 U.S.C. § 1702(23)(B).
13

120-day period for the agency to either pay or deny the request;16 (3) the right to bring suit to 

enforce the obligation beyond the seventh year;17 and (4) a 33-month period for resolving 

administrative appeals.18 Pl.’s Mot. at 21. 

Finally, BP maintains that its “interpretation is consistent with the focus in [Paragraph]

1721a(a)(3) on the presence of an ongoing audit.” Pl.’s Mot. at 22. In its view, the informal 

procedure of Subsection 1721a(a) “aligns with the give-and-take of the audit process,” which in 

turn “provides a vehicle for resolving claims without the formalities of a S[ubs]ection 1721a(b) 

‘demand,’” enabling the parties to “work together” to make the necessary adjustments. Id. And, 

to illustrate how its reading of the statute plays out in actual practice, BP cites its own experience 

in cooperating with ONRR auditors to make adjustments throughout the process. Id. 

Consistent with this interpretation, BP asserts that its refund requests “satisfied the 

statutory requirements for the issuance of a formal ‘demand,’ [meaning] BP is entitled to recover 

its royalty overpayments made within seven years prior to its issuance of the demands, as 

extended by the [t]olling [a]greements.” Pl.’s Mot. at 23. 

The government contends that BP’s reading “is a too-simplistic interpretation,” Def.’s 

Cross-Mot. at 16, and “incongruous with the language of the statute,” Def.’s Reply at 7. 

Dismissing BP’s distinction between informal refund requests and formal demands, the 

government contends that, at least under Section 1721a, refunds are “a specific type of demand 

 

16This paragraph provides that: 

A refund under this subsection shall be paid or denied (with an explanation of the 

reasons for the denial) within 120 days of the date on which the request for refund is 

received by the Secretary. Such refund shall be subject to later audit by the 

Secretary or the applicable delegated State and subject to the provisions of this 

chapter.

30 U.S.C. § 1721a(b)(3).

17This pertinent subsection provides:

In the event a demand subject to this section is properly and timely commenced, the 

obligation which is the subject of the demand may be enforced beyond the sevenyear limitations period without being barred by this statute of limitations. . . .

30 U.S.C. § 1724(j).

18The statute commands that:

The Secretary shall issue a final decision in any administrative proceeding . . . within 

33 months from the date such proceeding was commenced . . . . 

30 U.S.C. § 1724(h)(1).
14

for the return of overpaid royalties,” Def.’s Cross-Mot. at 16, and thus “all refunds for royalty 

overpayments must also be demands,” Def.’s Reply at 7 (emphasis in original). In the 

government’s view, then, the aforementioned aphorism has no bearing here—things that are 

different really are the same. Building on its conflation of refund requests and demands (at least 

respecting Section 1721a), the government insists that “to adopt BP’s interpretation that all 

demands are subject to the seven-year limitations period would completely read out of [Section] 

1721a the requirement that a lessee make an adjustment or refund request only during the 

adjustment period.” Def.’s Reply at 7 (internal quotations omitted) (emphasis in original). The 

government likewise asserts that “BP also renders the entirety of [Subsection] 1721a(b) 

superfluous because, pursuant to BP’s interpretation, all refund requests must be subject to the 

seven-year limitations period rather than the six-year adjustment period.” Id. at 8. In sum, the 

government casts doubt on BP’s reading by concluding that “[b]ecause the adjustment period 

applies to any adjustment or refund request, and because subsection (b) specifies that refund 

requests under this section must be identified as demands, the adjustment period applies not only 

to adjustments, but also at least to some demands as well.” Def.’s Cross-Mot. at 16 (internal 

quotations omitted). 

 

The government supports its proffered interpretation by pointing to the canon of statutory 

construction that the specific governs the general. Def.’s Cross-Mot. at 16. As applied here, 

“the limitations period for demands in [Paragraph] 1724 is the general rule,” but “the adjustment 

period applies specifically to one type of demands—refunds of royalty overpayments, as long as 

they meet the other requirements of [Section] 1721a(b)(1).” Id at 17. That leads the government 

to conclude that all refund requests made under Section 1721a must also be demands, and “a 

demand for a refund of a royalty overpayment is subject to the six-year adjustment period rather 

than the seven-year limitations period,” id., although it declines to take a position on what other 

types of demands might be subject to the seven-year period, id. at n.5. 

The government does allow that demands made under Section 1721a might sometimes 

fall within the seven-year period, but only those that fall within the exception in Paragraph 

1721a(a)(3). Def.’s Cross-Mot. at 19. That paragraph provides that a lessee may request an 

adjustment or refund outside of the six-year adjustment period “only upon written notice to and 

approval by the Secretary . . . during an audit of the period which includes the production month 

for which the adjustment is being made.” 30 U.S.C. § 1721a(a)(3). But the exception does not 

apply to BP’s claims, the government contends, because they “were neither made during an audit 

nor covered by the audit.” Def.’s Cross-Mot. at 19. Thus, the government concludes that while 

“the seven-year limitations period applies to both parties, [] refund demands within the scope of 

[Section] 1721a must also be made within the six-year adjustment period unless they fit within 

the exception provided by [Paragraph] 1721a(a)(3).” Def.’s Reply at 7. 

 

Both parties manage to underscore inadequacies in the other’s interpretation, and the 

court finds that both offer a reading of the text of the statute that exhibits inconsistencies and 

conflicting overlaps. For example, the government fails to proffer a cogent explanation for what 

meaning, if any, its reading would assign to Subsection 1721a(b) and its attendant crossreference to Section 1724, if all refund requests are subject to the time constraints of Subsection 

1721a(a). The court hesitates to adopt a reading of statutory text that renders a significant 

portion of it largely meaningless or inexplicable, thereby violating “the cardinal principle of 
15

statutory construction.” Williams v. Taylor, 529 U.S. 362, 364 (2000). Moreover, the 

government disregards the apparent differences in procedure between the two subsections, such 

as the requirement that payment must come from the Secretary of the Treasury in one case but 

not the other. It also would permit auditors to disallow refund requests by lessees on the ground

that they exceed the scope of the audit being conducted under Section 1721a and then preclude

any recovery afterward by terminating the audit after the six-year period expires. Nor is BP’s 

interpretation immune from serious criticism. BP is plainly correct that Subsection 1721a(a) 

must be different from Subsection 1721a(b), but its reading places excessive weight on form 

over substance. BP’s interpretation renders the time limitation of Paragraphs 1721a(a)(1) and (4)

meaningless because at any time beyond the six-year period the lessee could simply evade that 

limit by labelling its request a demand, thereby unilaterally procuring itself the safe harbor of an 

additional year. It seems doubtful, indeed illogical, that Congress would carefully craft a 

loophole that so blatantly swallows the rule. Consequently, neither party offers an entirely

satisfactory construction, but a third approach avoids these difficulties and is more consistent 

with the statute’s plain meaning and structure. 

3. A construction faithful to the statutory text.

No court has yet been called upon to address the precise legal question of when to apply 

the six-year versus the seven-year limitation period. As such, this is an issue of first impression, 

and, as it must, the court begins with the text of the statutory provisions involved. See Consumer 

Prod. Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 108 (1980) (“[T]he starting point for 

interpreting a statute is the language of the statute itself.”). That is enough to decide this case.

Section 1721a is divided into two subsections that differ in important ways and 

noticeably implicate two distinct contexts. Subsection 1721a(a) allows for certain kinds of 

adjustments or refund requests that can, as a general rule, occur “only during the adjustment 

period” of six years. 30 U.S.C. § 1721a(a)(1). Significantly, Subsection 1721a(a) applies upon 

the existence of an audit. That predicate is stated in Paragraph 1721a(a)(3), which allows a 

lessee, subject to notice and approval by the Secretary of Interior, to seek an adjustment or 

request a refund beyond the six-year period so long as it is made “during an audit of the period 

which includes the production month for which the adjustment is being made.” The rule making 

it impossible to seek a time extension after an audit has concluded strongly suggests that the 

statute contemplates that an audit, once initiated, encompasses all adjustments or refunds within 

the audit’s scope requested under Subsection 1721a(a). It follows then that the procedures and 

time limitations outlined in Subsection 1721a(a) are triggered when ONRR unilaterally initiates 

an audit, or potentially when an audit is triggered by a lessee’s independent request for a refund, 

at least respecting costs included within the scope of the audit. 

That understanding of Subsection 1721a(a) becomes even more apparent when read in 

tandem with Subsection 1721a(b). In the event that some overpayment amounts are not included 

within the scope of an audit, and thus do not fall within the processes of Subsection 1721a(a), 

Subsection 1721a(b) provides a vehicle for lessees to unilaterally seek a refund by submitting a 

refund demand. Subsection 1721a(b) sets forth requirements for how to make a demand and, by 

explicit cross-reference, incorporates the seven-year time limitation in Section 1724 for doing so.
16

In sum, Subsection 1721a(a) applies when the overpayments at issue are subject to an 

ONRR audit and Subsection 1721a(b) applies to allow lessees to demand refunds when the 

overpayments are not subject to an audit. Such an interpretation follows logically from a plain 

reading of the statutory language and avoids the strains produced by the parties’ proffered 

interpretations. Furthermore, it permits both subsections of Section 1721a to carry independent 

meaning, accounting for the differences in procedure and formality between the two. 

B. BP’s Claims Are Subject to the Seven-Year Limitations Period

The threshold question for determining which limitation period applies is thus whether 

the demands at issue concern overpayments that fall within or outside the scope of ONRR’s

audit. Under Subsection 1721a(a), requests within the scope of an audit must be brought within 

six years unless, during the audit, the Secretary of Interior approves a written notice requesting a 

refund. Under Subsection 1721a(b) and Section 1724, requests outside the scope of an audit 

must be brought within seven years. If the seven-year period applies, the court must then 

determine whether the demands satisfied the formal requirements of Subparagraphs

1721a(b)(1)(A)-(D). Here, the parties do not appear to contest that BP satisfied the procedural 

requirements of Subparagraphs 1721a(b)(1)(A)-(D) in submitting its demands.

BP’s demands of November 2013 and February 2014 sought $1,282,447 and were denied

as untimely by the ONRR Director. The Director noted first that the “requests would be timely 

for all months if subject to the seven-year limitation period,” AR 71-1128, but decided that the 

six-year period governed, and so BP was not entitled to an extension beyond that time because it 

“did not file its [d]emands during an audit of the claimed costs,” AR 71-1129. That conclusion 

was premised on the Director’s dual determination that (1) the “[a]udit did not cover the costs” 

BP sought to include in its deduction and, even so, (2) the audit was closed before BP requested 

the refunds. AR 71-1128. Repeatedly, the Director emphasized that “none of the costs that BP 

now claims in its [d]emands were ever before ONRR to review as part of the Na Kika [a]udit.” 

AR 71-1130. In the ensuing litigation before this court, the government has emphatically taken 

the same position, asserting that “all of BP’s costs were outside the scope of the audit.” Def.’s 

Cross-Mot. at 26. Indeed, that assumption is a core part of the government’s position that BP 

could not seek an extension under its interpretation of Paragraph 1721a(a)(3). In the 

government’s view, the costs were never eligible for the one-year extension because no audit 

ever considered them. 

Because both the ONRR Director’s decision and the government in this litigation adopt

the premise that the disputed costs were not within the scope of any audit, the court need not 

consider how to determine the Na Kika audit’s precise scope and breadth. Although in some 

cases addressing the particular and precise scope of an audit might well be a crucial or even 

dispositive question, this is not such a case because the government concedes the point.

19

 It is 

significant to note, however, that the scope of a tolling agreement, even if entered into as a 

 

19Notably, however, at oral argument the government seemed unable to provide any 

limiting principle to guide the court in determining the boundaries of audit scope. See, e.g., Hr’g 

Tr. 47:17 to 54:5; 62:17 to 64:1. 
17

consequence of an audit, does not serve to define the scope of the audit because tolling 

agreements are not necessarily coextensive with audits. Subsection 1721a(a)(4) permits the 

tolling of the audit adjustment period by incorporating the tolling provisions of Section 1724, 

which also operates to toll amounts not under audit, indicating that tolling agreements can 

function independently from audits and can include amounts either under audit or not under 

audit. As such, tolling agreements cannot reflexively be used to define the scope of an audit. 

Furthermore, there cannot be any question here that the tolling agreements at issue operated to 

toll the limitation period of both audited and unaudited costs because they expressly covered any 

limitation periods in both Sections 1721a and 1724. See, e.g., AR 9-45. 20

In sum, the costs in BP’s demands were not subject to ONRR’s audit and thus do not fall 

within the six-year limitation period of Subsection 1721a(a). Instead, the requests met the 

demand requirements of Subsection 1721a(b) and accordingly fall within the seven-year 

limitation period of Subsection 1724(b). It follows that the costs included in BP’s demand letters 

are subject to the seven-year limitation period as extended, where applicable, by the tolling 

agreements. Therefore, consistent with the ONRR Director’s recognition, applying the sevenyear period renders BP’s demands timely, at least insofar as they are included in the tolling 

agreements. 

C. The Mica and Mad Dog Properties

BP next challenges the ONRR Director’s decision ordering BP to repay21 the refunds that 

ONRR, applying a seven-year statute of limitations, had previously allowed in relation to the 

Mica and Mad Dog Properties. See Pl.’s Mot. at 26. 22 The Director first determined that, 

contrary to ONRR’s original approach, the six-year statute of limitations governed refunds for 

 

20The Director’s decision, despite its flawed interpretation of Section 1721a, recognized 

that these tolling agreements included unaudited costs. See AR 71-1127 to 1128. 

21In response to the Director’s order, BP represents that it did return the amounts ordered 

to be refunded, “under protest . . . so that all the dollars at issue could be before [the court].” 

Hr’g Tr. 73:12-14.

22The precise amount at issue here is subject to inconsistencies that stem from what are 

apparently typographical errors in the parties’ filings. For example, the complaint states that the 

refunded amount included $188,821 attributable to Mad Dog and $65,517 attributable to Mica, 

for a total of $254,338. Compl. ¶ 28. In its motion for judgment on the administrative record, 

however, plaintiff states that the amount is $188,821 attributable to Mad Dog and $45,517 

attributable to Mica, for a total of $234,338. Pl.’s Mot. at 26. In its response and cross-motion, 

without further explanation, the government includes both inconsistent totals at different places. 

See Def.’s Cross-Mot. at 29-30. Then in its response, plaintiff appears to misquote the 

government’s brief, identifying the total as $354,338. Pl.’s Reply at 23 (quoting incorrectly 

Def.’s Cross-Mot. at 30). The government again uses the original figure of $254,338 in its reply. 

Def.’s Reply at 16. As the parties’ filings do not acknowledge these discrepancies, they appear 

to be the consequence of scrivener’s errors, and the court will proceed on the basis that the 

appropriate figures are those originally included in the complaint, totaling $254,338. 
18

both properties (neither of which, he concluded, was under audit). See AR 71-1132 to 1133. 

Turning to the Mica property, he noted that it had not been covered by any of the tolling 

agreements, such that, after applying a six-year adjustment period from the February 2014 refund 

request date, the first month within the time eligible for refund was January 2008. See AR 71-

1133 to 1134. Because the ONRR auditors had permitted refunds for production months in 

2007, the Director concluded that BP must return those untimely requested refunds. AR 71-

1133. Similarly, the Director noted that, although covered by two tolling agreements, the Mad 

Dog property was only tolled for a period of 260 days, meaning that “[b]ased on the date of BP’s 

2014 [d]emand—February 12, 2014—the extended adjustment period reached back to May 28, 

2007,” but ONRR had “granted the refund request for production months January 2007 through 

March 2007.” AR 71-1133. Thus, the Director concluded that BP must also return the Mad Dog 

refunds for the production months January 2007 through March 2007. See AR 71-1133.

In their briefs, the parties focus their attention respecting the Mica and Mad Dog 

properties primarily on BP’s secondary argument that the Director’s decision ordering repayment 

of the refunds constituted a demand barred by the seven-year statute of limitations. See Pl.’s 

Mot. at 26; Def.’s Cross-Mot. at 28-30. But those arguments are rendered irrelevant by the 

court’s conclusion that demands respecting unaudited costs are subject to the seven-year 

limitation period of Subsections 1721a(b) and 1724(b), which extends the refund period for the 

Mica and Mad Dog properties until at least the beginning of 2007, covering all the disputed 

amounts. ONRR initially applied the seven-year limit and appropriately acquiesced to BP’s 

demands for a refund of costs associated with Mica and Mad Dog from that time. But, while 

acknowledging that the relevant costs were not under audit, the Director’s decision concerning 

Mica and Mad Dog erred by reversing ONRR and applying the six-year adjustment period to 

unaudited costs. Application of the seven-year period leads to the conclusion that BP’s refund 

demands were timely and appropriately granted by ONRR. Consequently, the Director erred in 

ordering BP to repay the $254,338 refund associated with the Mica and Mad Dog properties. 

D. BP’s Eligibility for Interest on Overpayments

As enacted by the Royalty Simplification Act, Subsection 1721(h) required that interest 

“be allowed and paid or credited on any overpayment, with such interest to accrue from the date 

such overpayment was made.” 30 U.S.C. § 1721(h) (2012). In 2015, the FAST Act eliminated 

that provision for interest, stating simply that Section 1721 was amended “by striking 

[S]ubsection[] (h).” FAST Act § 32301. BP’s overpayments were made prior to the 2015

enactment of the FAST Act, and, in addition to the refund of overpayments, BP claims that it is 

entitled to interest “that accrued from the time that BP made the royalty overpayments through 

the date on which [the Department of] Interior has refunded the overpayments.” Pl.’s Mot. at 27. 

The government does not dispute BP’s right to recover interest that accrued before the effective 

date of the FAST Act on December 4, 2015. See Def.’s Cross-Mot. at 32. The government 

contends, however, that the FAST Act eliminated ONRR’s authority to pay interest after 

December 4, 2015, such that no further interest could accrue after that time. See id. 

BP supports its position by reference to the Federal Savings Statute, 1 U.S.C. § 109. See 

Pl.’s Mot. at 27-28. In relevant part, the Federal Savings Statute provides that—
19

[t]he repeal of any statute shall not have the effect to release or extinguish any 

penalty, forfeiture, or liability incurred under such statute, unless the repealing 

Act shall so expressly provide, and such statute shall be treated as still remaining 

in force for the purpose of sustaining any proper action or prosecution for the 

enforcement of such penalty, forfeiture, or liability.

1 U.S.C. § 109. First enacted in 1871 to override the common law rule that presumptively 

eliminated statutory liabilities upon a statute’s repeal, see Stauffer v. Brooks Bros. Group, Inc., 

758 F.3d 1314, 1321 n.3 (Fed. Cir. 2014); see also Warden v. Marrero, 417 U.S. 653, 660 

(1974), the Federal Savings Statute establishes “a rule of construction . . . to be read and 

construed as a part of all subsequent repealing statutes, in order to give effect to the will and 

intent of Congress,” Hertz v. Woodman, 218 U.S. 205, 217 (1910) (citations omitted); see also 

United States v. Reisinger, 128 U.S. 398, 401 (1888). BP asserts that the FAST Act—far from 

expressly providing that it applies retroactively to overpayments made prior to its enactment—is 

simply silent on the matter of retroactive application, and thus the background principle of the 

Federal Savings Statute functions to preserve the continuing accrual of interest on obligations 

incurred prior to the effective date of the FAST Act. Pl.’s Mot. at 28. BP bolsters its argument 

against retroactive application by noting the contrast that “where it intended to do so, Congress 

explicitly made other provisions of the FAST Act retroactive.” Id.23

The disputed issue regarding interest is thus whether the FAST Act prospectively cut off 

the continued accrual of interest after its enactment. Building on the foundation of the Federal 

Savings Statute, BP cites two cases in support of its assertion that interest on preexisting 

obligations continued to accrue even after enactment of the FAST Act. See Pl.’s Mot. at 29-31. 

First, it points to the Supreme Court’s decision in De La Rama S.S. Co. v. United States, 344 

U.S. 386 (1953). Id. De La Rama held that the Federal Savings Statute operated, after repeal of 

the statute that had created a disputed liability, not only to preserve the liability at issue but also 

the jurisdictional provisions that the repealed statute had created to enforce liabilities incurred 

thereunder. Id. at 389-90. The enforcement mechanism and the liability itself were, the Court 

held, “part and parcel” of the same congressional objective. Id. at 390. Likewise, BP asserts, 

“the Federal Savings Statute saves both the government’s liability for interest on overpaid 

royalties made prior to the FAST Act and the means to satisfy that liability.” Pl.’s Mot. at 29 

(emphasis in original). 

Second, BP cites Korshin v. Commissioner, 91 F.3d 670 (4th Cir. 1996), where the 

Fourth Circuit had occasion to address the Federal Savings Statute as it applied to a repealed 

 

23This argument is reminiscent of a familiar canon of statutory interpretation, expressio 

unius est exclusio alterius, namely, the assumption that “expressing one item of a commonly

associated group or series excludes another left unmentioned.” United States v. Vonn, 535 U.S. 

55, 65 (2002). The canon is a helpful interpretive aid but is not always apt and serves “only [as] 

a guide, whose fallibility can be shown by contrary indications that adopting a particular rule or 

statute was probably not meant to signal any exclusion of its common relatives.” Id. (citations 

omitted). Nonetheless, the compelling and undisputed suggestion here is that by explicitly 

making certain provisions retroactive, Congress intended by its silence elsewhere in the same 

statute to act only prospectively. 
20

statutory provision allowing the accrual of interest. Pl.’s Mot. at 30-31. Korshin involved a 

provision of the Internal Revenue Code which required the payment of interest on negligently 

underpaid taxes. See 91 F.3d at 672. That provision specified that interest would accrue from 

the date the tax was due until either the date of assessment or payment, whichever occurred first, 

but Congress repealed the provision in 1988. See id. at 674. The Fourth Circuit rejected 

Korshin’s argument that interest on his underpayments between 1983 and 1987 should have 

stopped accruing in 1988, upon repeal of the interest-authorizing provisions. See id. at 674-75. 

The court first concluded that the repealing act did not “specifically provide[] for the 

extinguishment of existing liabilities for negligent underpayment.” Id. at 674. Reasoning from 

that premise, the court applied the Federal Savings Statute to determine that liabilities under the 

repealed version of the statute must be preserved, and to do so “the interest portions . . . must be 

given their full value as prescribed by the statute; the interest must therefore begin and stop 

accruing as the statute[] specified.” Id. at 674-75. BP contends that “[t]he Federal Savings 

Statute compels the same result in this case—the interest on royalty overpayments that BP made 

prior to the effective date of the FAST Act began accruing from the date of overpayment and 

continued to accrue until the overpayment is recovered.” Pl.’s Mot. at 31 (quotations omitted). 

The government counters that the legislative history of the FAST Act and principles of 

sovereign immunity pose obstacles to the continued accrual of interest after 2015, and it attempts 

to dismiss each of BP’s arguments in turn. See Def.’s Cross-Mot. at 32-37. The court finds 

these arguments unpersuasive. Almost as a starting point, the government posits that “the FAST 

Act’s legislative history confirms that the limited effect of [Sub]section 1721(h)’s repeal was to 

end the accrual of any overpayment interest after December 3, 2015.” Def.’s Cross-Mot. at 33. 

In support of that conclusion, it proceeds through a series of ostensibly supporting sources, 

including Department of Interior budget justifications, Office of Management and Budget 

submissions to Congress, a conference committee report, and a Congressional Budget Office 

projection. See id. at 33-35. But “a court’s proper starting point lies in a careful examination of 

the ordinary meaning and structure of the law itself . . . . [and where] that examination yields a 

clear answer, judges must stop.” Food Marketing Inst. v. Argus Leader Media, __ U.S. __, __,

139 S. Ct. 2356, 2364 (2019) (citations omitted). “[C]lear evidence of congressional intent may 

illuminate ambiguous text,” but ambiguous legislative history can never be used “to muddy clear 

statutory language.” Milner v. Department of Navy, 562 U.S. 562, 572 (2011). Here, the 

government’s resort to legislative history disregards the statutory backdrop of the Federal 

Savings Statute. The Federal Savings Statute establishes an interpretive premise that has to be 

applied by the interpreter; the result produced here is that absent any express repeal of existing 

liabilities and the related interest accrual provisions, Congress left those provisions intact. The 

proffered legislative history would be used to develop inferences that would create ambiguity 

where there is none. 

The government then asserts that the FAST Act “withdrew the waiver of sovereign 

immunity as to the accrual of interest.” Def.’s Cross-Mot. at 36. While it correctly notes that the 

sovereign may not be subjected to suit without an express waiver of immunity, that such waivers 

must be construed strictly and narrowly, and that ambiguity must be resolved in favor of the 

sovereign, see id., the government mistakenly severs the interest obligation from the wavier of 

sovereign immunity. The Federal Savings Statute does “not merely save from extinction a 

liability incurred under the repealed statute; it save[s] the statute itself.” De La Rama S.S. Co., 
21

344 U.S. at 389. Thus, Subsection 1721(h) represented an express waiver of sovereign

immunity, and the Federal Savings Statute functioned to preserve that waiver as it existed when 

Congress prospectively repealed the provision in 2015. Indeed, it is difficult to conceive how the 

Federal Savings Statute could have “saved the statute itself” without preserving the immunity 

waiver. See id. As in De La Rama, where recovery of obligations due was premised on the 

associated grant of jurisdiction and both were preserved by the Federal Savings Statute, see 344 

U.S. at 390, so here the recovery of interest obligations is premised on a waiver of sovereign 

immunity. Thus, while the FAST Act eliminated government liability for interest on obligations 

incurred after its enactment, not those incurred before, it did not implicitly remove its previous 

express waiver of immunity. The government is manifestly correct that “interest cannot be 

recovered in a suit against the [g]overnment in the absence of an express waiver of sovereign 

immunity from an award of interest,” Def.’s Reply at 17 (quotation omitted), but it fails to 

recognize that Section 1721(h) did waive immunity, and its repeal, in light of the Federal 

Savings Statute, did nothing to withdraw that waiver. Likewise, contrary to the government’s 

contention, the fact that interest here is compounding does not somehow daily create a new 

liability. See Def.’s Cross-Mot. at 37. The compounding nature of the interest is “part and

parcel” of the underlying obligation, integral to the statute as it originally existed, and in no way 

changes the analysis. See De La Rama, 344 U.S. at 390. 

The government seeks to undermine BP’s reliance on Korshin by distinguishing it in 

several respects. First, it claims that Korshin involved interest owed to, rather than by, the 

United States, and for that reason did not implicate the same issues of sovereign immunity. See 

Def.’s Cross-Mot. at 37. As already noted, however, sovereign immunity does not pose the 

barrier the government would establish. Second, the government emphasizes that the statute in 

Korshin explicitly stated that interest would accrue until the date of payment, and thus was 

unaffected by the repeal in light of the Federal Savings Statute, whereas Subsection 1721(h) did 

not specify the end date of the accrual and as such there was nothing to preserve in that regard. 

See Hr’g Tr. 68:24 to 71:11. This difference does not, however, carry as much weight as the 

government supposes. Significantly, the statute in Korshin did not merely specify that interest 

would accrue until the date of payment; rather, it provided that interest would accrue until the 

earlier of two possible events occurred—the assessment date or the payment date. See Korshin, 

91 F.3d at 674. One generally assumes that interest accrues until the date the underlying 

obligation is satisfied, unless some other date or cut-off event is specified. The need to clarify, 

as in Korshin, only arises when other alternatives are available. The statute here being silent on 

the matter, no evident date other than that of payment presents itself. By silence, the statute 

implicitly assumes that interest will accrue until the underlying obligation is paid, and the 

government presents no basis to suspect that Congress would have understood it differently 

when it declined to expressly cut off interest accrual on previously incurred obligations when it 

enacted the FAST Act. Indeed, the government acknowledges that, prior to repeal, “ONRR 

could [and did] reasonably interpret [Subs]ection 1721(h) to require the accrual of interest until 

the return of overpayment principal, inasmuch as no statutory language prescribed when accruals 

ended or otherwise limited future accruals.” Def.’s Reply at 18. The court agrees. Moreover, if 

it was a reasonable interpretation of the statute before repeal, the government proffers no 

compelling reason why that understanding of the statute—which was preserved by the Federal 

Savings Statute—would cease to be reasonable after repeal. 
22

CONCLUSION

For the reasons stated, BP’s motion for judgment on the administrative record is 

GRANTED and the government’s cross-motion is DENIED. BP is awarded judgment for 

$1,536,785 ($1,282,447 plus $254,338), as well as interest on all unpaid refunds computed “at 

the rate obtained by applying the provisions of subparagraphs (A) and (B) of section 6621(a)(1) 

of Title 26, but determined without regard to the sentence following subparagraph (B) of section 

662(a)(1),” 30 U.S.C. § 1721(h) (2012), applied continuously until the judgment is paid. The 

clerk shall enter judgment accordingly. 

BP is awarded its costs of suit.

It is so ORDERED.

s/ Charles F. Lettow 

Charles F. Lettow

Senior Judge