PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

 

IMPACT ENERGY RESOURCES, LLC; 

PEAK ROYALTY HOLDINGS, LLC; 

QUESTAR EXPLORATION AND 

PRODUCTION COMPANY; UINTAH 

COUNTY; CARBON COUNTY; 

DUCHESNE COUNTY, 

 Plaintiffs–Appellants, 

v. 

KEN SALAZAR, in his official capacity 

as Secretary of the Department of the 

Interior; UNITED STATES 

DEPARTMENT OF THE INTERIOR; 

KENT HOFFMAN, in his official 

capacity as Deputy State Director for 

Minerals, Utah Bureau of Land 

Management of the Department of the 

Interior; UNITED STATES BUREAU OF 

LAND MANAGEMENT, Utah State 

Office, 

Defendants–Appellees. 

NATIONAL PARKS CONSERVATION 

ASSOCIATION; NATIONAL TRUST 

FOR HISTORIC PRESERVATION; 

SOUTHERN UTAH WILDERNESS 

ALLIANCE; NATURAL RESOURCES 

DEFENSE COUNCIL; WILDERNESS 

SOCIETY; SIERRA CLUB; UTAH 

RIVERS COUNCIL; GREAT OLD 

BROADS FOR WILDERNESS; GRAND 

Nos. 11-4043 & 11-4057 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 5, 2012

Elisabeth A. Shumaker 

Clerk of Court
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CANYON TRUST, 

 Defendants–Intervenors– 

 Appellees. 

RED ROCK FORESTS, 

 Defendant–Intervenor, 

------------------------------ 

WESTERN ENERGY ALLIANCE, 

 Amicus Curiae. 

 

Appeal from the United States District Court 

 for the District of Utah 

(D.C. No. : 2:09-CV-00435-DB)

 

Michael L. Beatty, Beatty & Wozniak, P.C. Denver, Colorado, and Mark Ward, Utah 

Association of Counties, Murray, Utah, (Robert S. Thompson, III, Beatty & Wozniak, 

P.C., Denver, Colorado, on the briefs) for the Plaintiffs-Appellants. 

Robin Cooley, Earthjustice, Denver, Colorado (Steven Bloch and David Garbett, 

Southern Utah Wilderness Alliance on the briefs), for the Defendants-IntervenorsAppellees. 

Vivian H.W. Wang, United States Department of Justice, Environment & Natural 

Resources Division, Washington, D.C., (Ignacio S. Moreno, Assistant Attorney General, 

David C. Shilton, Tyler Welti, and Charles R. Scott, United States Department of Justice, 

on the brief) for Defendants-Appellees. 

Kent Holsinger and Laura L. Chartrand, Holsinger Law, LLC, Denver, Colorado, filed a 

brief for Amicus Curiae Western Energy Alliance on behalf of Plaintiffs-Appellants. 

 

Before LUCERO, SEYMOUR, and TYMKOVICH, Circuit Judges. 
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PER CURIAM. 

 

 

 Appellants in this case are companies that submitted high bids on certain oil and 

gas leases at a Bureau of Land Management (“BLM”) auction (collectively, the “Energy 

Companies”). After the auction but before the leases were issued, newly appointed 

Secretary of the Interior Ken Salazar decided not to lease the parcels at issue. Salazar 

announced his decision at a February 4, 2009, press conference and memorialized his 

determination in a February 6 memorandum to the BLM’s Utah State Director. On 

February 12, 2009, a subordinate BLM official mailed letters to the high bidders 

indicating that the leases would not be issued. Exactly ninety days later, the Energy 

Companies filed suit challenging the Secretary’s authority to withdraw the leases. The 

district court dismissed their suit as time-barred under the Mineral Leasing Act (“MLA”), 

which provides that “[n]o action contesting a decision of the Secretary involving any oil 

and gas lease shall be maintained unless such action is commenced or taken within ninety 

days after the final decision of the Secretary relating to such matter.” 30 U.S.C. § 226-2. 

 A majority of the panel agrees with the district court that the Secretary’s final 

decision in this matter occurred no later than February 6, and thus, the suit is time-barred. 

As explained in their separate concurrences, however, the panel majority would employ 

somewhat differing analyses in reaching this result. Judge Lucero would hold that under 

the plain text of the MLA, the Secretary’s decision was final on February 6 regardless of 

whether plaintiffs’ claims under the Administrative Procedure Act (“APA”) had accrued 
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at that time. Judge Seymour would hold that the word “final” bears the same meaning in 

the phrase “final decision of the Secretary,” 30 U.S.C. § 226-2, as it does in the phrase 

“final agency action” under the APA, 5 U.S.C. § 704, and that final agency action 

occurred no later than February 6. Judge Tymkovich agrees with Judge Seymour’s 

conclusion that final agency action is necessary, but disagrees with the majority’s 

conclusion that the suit is time-barred as explained in his dissent. 

 The panel majority also agrees with the district court that the Energy Companies 

are not entitled to equitable tolling in this matter. The BLM notified the high bidders just 

six days after the Secretary made his decision. And the government notified the Energy 

Companies of its position that February 6 was the operative date during agency 

proceedings. Although the Energy Companies had time to prepare their claims before the 

limitations period expired, they gambled that a court would accept their proffered 

limitations theory. Equitable tolling is not required under these circumstances. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I

 On November 4, 2008, the BLM announced that it would hold a competitive 

auction of oil and gas leases on certain federal lands in Utah. The auction was scheduled 

for December 19, 2008. The National Park Service objected to the decision to lease 

many of the parcels, and after consulting with that agency, the BLM revised its auction to 

include 132 rather than 241 parcels as originally planned. 

 Several environmental organizations, including intervenor Southern Utah 
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Wilderness Alliance (“SUWA”), filed administrative protests of the proposed lease sales. 

The notice of auction informed potential bidders that the BLM could not actually issue 

any leases until such protests were resolved. It stated that protested leases would 

nonetheless be auctioned and that the high bidder would be refunded any monies paid in 

the event that a parcel was withdrawn as a result of an administrative protest. Shortly 

before the scheduled auction, SUWA and other conservation groups filed suit in the D.C. 

District Court seeking to halt the planned sale. See S. Utah Wilderness Alliance v. 

Allred, 2009 U.S. Dist. LEXIS 30664, at *4 (D.D.C. Jan. 17, 2009) (unpublished). 

 On December 19, 2008, the auction went forward as planned and the BLM 

accepted bids on 116 lease parcels. The Energy Companies were recognized as high 

bidders for several of these parcels—thirty-six of which are located in counties that were 

also parties to this action below. Subsequently, the BLM recognized the appropriate high 

bidders and accepted payment for the parcels, with the express caveat that the leases 

could not actually be issued until all protests were resolved. 

 On January 17, 2009, the D.C. District Court granted a temporary restraining order 

prohibiting the BLM from issuing leases on 77 parcels, including those for which the 

appellants were the highest bidders. See S. Utah Wilderness Alliance, 2009 U.S. Dist. 

LEXIS 30664, at *9. It found that the environmental groups were likely to succeed on 

their claims under the National Environmental Policy Act (“NEPA”) because the 

government did not conduct a proper air quality analysis. Id. at *7. The court further 

concluded that the environmental groups were likely to prevail on their National Historic 
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Preservation Act and Federal Land Policy and Management Act (“FLPMA”) claims 

because the BLM failed to consider impacts on historic resources. Id. The court made 

the restraining order effective “until further order of the court” and ordered the parties to 

submit briefing on a preliminary injunction. Id. at *9. 

 Newly-appointed Secretary of the Interior Ken Salazar essentially mooted the D.C. 

District Court dispute shortly thereafter. On February 4, 2009, he held a press conference 

to announce that the 77 parcels subject to the temporary restraining order would not be 

leased. He stated: “I have directed [the BLM] not to accept bids on the 77 parcels” and 

that the “effect will be immediate . . . . This is a directive to the BLM therefore the lease 

process will not go forward.” He further explained, “[W]hat essentially I have done is to 

have removed the 77 parcels from the consummation of a lease.” On the same day, the 

Department of the Interior issued a press release announcing Salazar’s decision on its 

website, stating: 

In its last weeks in office, the Bush Administration rushed ahead to sell oil 

and gas leases at the doorstep of some of our nation’s most treasured 

landscapes in Utah. We need to responsibly develop our oil and gas 

supplies to help us reduce our dependence on foreign oil, but we must do so 

in a thoughtful and balanced way that allows us to protect our signature 

landscapes and cultural resources . . . . We will take a fresh look at these 77 

parcels and at the adequacy of the environmental review and analysis that 

led to their being offered for oil and gas development. I am also concerned 

that there was inadequate consultation with other agencies, including the 

National Park Service.

The announcement was covered extensively in both the regional and national press. See, 

e.g., Amy Joi O’Donoghue, Salazar Halts Sale of Utah Oil, Gas Leases, Deseret News, 

Feb. 5, 2009; Mark Jaffe, Utah Energy Leases Halted, Denver Post, Feb. 5, 2009; Leslie 
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Kaufman, Interior Secretary Cancels Drilling Leases on Public Lands in Utah, N.Y. 

Times, Feb. 5, 2009.

 The following day, February 5, the federal defendants in the D.C. District Court 

case filed an unopposed motion to stay briefing on the preliminary injunction question. 

They stated: “On February 4, 2009, Ken Salazar . . . directed the BLM not to accept the 

bids on the 77 parcels that are the subject of this Court’s temporary restraining order. 

Accordingly, those leases will not be issued.” When this motion was filed, Carbon 

County—a plaintiff in the action at bar—was a party in that case. Several attorneys that 

now represent the Energy Companies had entered an appearance and also received this 

filing. 

 Also on February 5, the BLM’s Utah State Director issued an “Information 

Memorandum for the Secretary.” The memo stated, “On February 4, 2009, Secretary of 

the Interior Ken Salazar announced the decision to withdraw oil and gas leases offered on 

77 parcels . . . . A written decision withdrawing the leases will be needed to document 

the process.” The State Director indicated that once her office received the “officially 

documented decision from the Secretary,” it would begin the process of refunding the 

payments received from winning bidders. 

 Secretary Salazar signed and issued a memo to the BLM’s Utah State Director the 

following day, February 6, stating: 

There has been considerable controversy surrounding this lease sale, 

including questions about the degree of coordination between the BLM and 

other Federal agencies, including the National Park Service, and the 

adequacy of the environmental review and analysis performed in 
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connection with certain parcels as well as the underlying Resource 

Management Plans. . . . Given the concerns about the adequacy of the 

consideration[,] . . . I am directing you to withdraw the 77 parcels that were 

covered by the January 17, 2009, Temporary Restraining Order from 

further consideration in this lease sale. 

 In accordance with applicable laws, regulations, and agency 

procedures, please take all necessary actions to effectuate this withdrawal, 

including promptly notifying the high bidders and returning any monies 

received by BLM in connection with these 77 parcels.

This transmittal was not made immediately public.

 On February 12, 2009, the BLM’s Utah Deputy State Director sent letters via 

certified mail to the high bidders on the 77 leases explaining that the parcels had been 

withdrawn. The letters state that “Ken Salazar has directed the BLM to withdraw these 

parcels from the December 19, 2008 Oil and Gas Lease Sale.” They also authorized a 

refund of the bidders’ payments. 

 The Energy Companies attempted to appeal the lease withdrawals by filing an 

administrative appeal with the Interior Board of Land Appeals (“IBLA”) on March 13, 

2009. See Robert L. Bayless Producer, 177 IBLA 83 (2009). The BLM filed a motion to 

dismiss that appeal on March 23, 2009, on the ground that the IBLA lacks jurisdiction 

over any decision “approved by the Secretary.” 43 C.F.R. § 4.410(a)(3) (withdrawing 

IBLA authority if “a decision has been approved by the Secretary”). In its motion, the 

BLM took the position that the appeal sought review of the “February 6, 2009 Decision 

of the Secretary.” It states that “appellants attempt to appeal BLM’s February 12, 2009 

letters. However, the BLM letters merely implement the Secretary’s February 6, 2009 

decision to withdraw the subject parcels from further consideration in the December 19, 
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2008 oil and gas lease sale.” The February 6 transmittal was attached to the motion. 

The IBLA granted the motion and dismissed the appeal on April 9, 2009. Robert 

L. Bayless Producer, 177 IBLA at 85. Its order of dismissal states: “On February 12, 

2009, BLM issued decisions related to 53 of those parcels from which this appeal is 

taken.” Id. at 84. However, the order acknowledged the BLM’s position that the agency 

letters “merely implement the Secretary’s directive.” Id. The IBLA order characterizes 

the appellants as expressing some confusion as to the relevant date, noting that “they 

received no decisions other than those that BLM issued on February 12, so it was not 

clear to them whether BLM’s decision or the Secretary’s February 6 memorandum was 

final agency action under the Administrative Procedure Act.” Id. Because the Secretary 

“specifically directed BLM to take a particular action,” the IBLA concluded it lacked 

jurisdiction over the appeal. Id. The IBLA rejected appellants’ request for an “opinion 

as to whether the Secretary’s memorandum constitutes ‘final’ administrative action for 

purposes of judicial review” because it “do[es] not issue advisory opinions regarding 

matters in an appeal that we have no authority to consider.” Id. at 85. 

 On May 13, 2009, appellants filed suit against Salazar, the Department of the 

Interior, the BLM, and the BLM’s Deputy Director for Minerals in the District of Utah, 

challenging the decision to withdraw the leases as violations of the MLA, APA, and 

FLPMA. Several environmental groups intervened on behalf of the government. 

 The district court dismissed the action as time-barred. It concluded that the “final 

decision of the Secretary” as that phrase is used in 30 U.S.C. § 226-2 was Salazar’s 
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February 6 transmittal. And because plaintiffs did not file suit within ninety days of that 

decision, they did not fit within the MLA’s limited waiver of sovereign immunity. The 

court further concluded that plaintiffs were not entitled to equitable tolling and 

accordingly entered judgment in favor of the defendants. The Energy Companies now 

appeal.

II

 We review a district court’s dismissal based on sovereign immunity de novo. See 

Governor of Kan. v. Kempthorne, 516 F.3d 833, 841 (10th Cir. 2008). “Sovereign 

immunity protects the United States and its agencies from being sued without their 

consent.” Poche v. Joubran, 644 F.3d 1105, 1108 (10th Cir. 2011). “[T]he party 

asserting jurisdiction bears the burden of proving that sovereign immunity has been 

waived.” Sydnes v. United States, 523 F.3d 1179, 1183 (10th Cir. 2008) (citation 

omitted). 

Plaintiffs in this case invoke the limited waiver of sovereign immunity provided 

for in the APA. Under that provision, aggrieved parties may challenge “[a]gency action 

made reviewable by statute and final agency action for which there is no other adequate 

remedy in a court.” 5 U.S.C. § 704. However, the APA prohibits review of agency 

decisions “to the extent that . . . statutes preclude judicial review.” 5 U.S.C. § 701(a). 

The MLA includes such a prohibition: “No action contesting a decision of the Secretary 

involving any oil and gas lease shall be maintained unless such action is commenced or 

taken within ninety days after the final decision of the Secretary relating to such matter.” 
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30 U.S.C. § 226-2. This statutory deadline constitutes “a condition to the waiver of 

sovereign immunity and thus must be strictly construed.” Irwin v. Dep’t of Veterans 

Affairs, 498 U.S. 89, 94 (1990).1

 The Energy Companies ask that we look to several provisions of the APA in 

determining when the limitations period began to run. First, they argue that the APA’s 

notice provision supersedes the MLA’s statute of limitations such that the limitations 

period began to run when they received actual notice of the Secretary’s decision. They 

point to the APA’s requirement that “[p]rompt notice shall be given of the denial in 

whole or in part of a written application, petition, or other request of an interested person 

made in connection with any agency proceeding.” 5 U.S.C. § 555(e). They further note 

that the “APA governs agency procedures in all administrative proceedings,” Friends of 

the Bow v. Thompson, 124 F.3d 1210, 1214 (10th Cir. 1997), and that a statute cannot 

supersede the APA “except to the extent that it does so expressly,” 5 U.S.C. § 559. 

 Neither the APA nor the MLA suggest that the latter’s statute of limitations is 

bound by the former’s notice provision. Congress can, and often does, elect to begin a 

limitations period when a party receives notice. See, e.g., 42 U.S.C. § 1395oo(f)(1) 

(permitting “civil action commenced within 60 days of the date on which notice of any 

 1

 In Geosearch, Inc. v. Hodel, 801 F.2d 1250, 1252 (10th Cir. 1986), we held that 

the MLA’s statute of limitations is jurisdictional. We overruled Geosearch on other 

grounds in Reppy v. Department of the Interior, 874 F.2d 728, 730 n.5 (10th Cir. 1989), 

noting that a recent Supreme Court case might undermine Geosearch’s jurisdictional 

holding. For purposes of this case, whether the statute of limitations is jurisdictional is 

immaterial because the government moved to dismiss based on the statute of limitations. 
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final decision by the Board . . . is received”). But the MLA’s limitations period is not 

notice-based. The MLA very clearly starts the clock on the date of “the final decision of 

the Secretary,” 30 U.S.C. § 226-2, not when notice of that decision is received. 

 There is no textual basis to conclude that a violation of the APA’s notice 

requirement warrants an alteration of another statute’s unambiguous limitations 

provision. APA claims are generally covered by the six-year limitations period contained 

in 28 U.S.C. § 2401(a). See Smith v. Marsh, 787 F.2d 510, 512 (10th Cir. 1986). 

Consistent with the plain text of that statute of limitations, we have held that APA claims 

must be brought within six years of the claim’s accrual rather than within six years of 

notice.2

 See id.; see also 28 U.S.C. § 2401 (actions against the United States must be 

filed “within six years after the right of action first accrues”). In other words, the 

limitations provision in 28 U.S.C. § 2401, not the APA’s notice provision, determines the 

limitations start date in the usual APA case. The Energy Companies give us no reason to 

treat the interaction of § 555(e) and the MLA’s statute of limitations differently. Notice 

may be relevant to the issue of equitable tolling, see Part III infra, but it does not alter the 

 2

 Accrual and actual notice dates are often identical, but diverge with some 

frequency. See, e.g., Sterlin v. Biomune Sys., 154 F.3d 1191, 1197 (10th Cir. 1998) (a 

limitations period did not begin “when a plaintiff has full knowledge of the existence of a 

claim” but “when a plaintiff is placed on ‘inquiry notice’” (quotations omitted)). In this 

case, for example, the Energy Companies argue that their claims accrued on February 12, 

when the BLM mailed its letters. But the Energy Companies presumably received those 

letters a day or two later. 
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date the limitations period begins to run.3

 

 The Energy Companies further argue that the MLA’s statute of limitations could 

not have begun to run until the BLM engaged in “final agency action” under the APA. 

See 5 U.S.C. § 704. They note that their claims arose under 5 U.S.C. § 704, and 

accordingly could not have been filed until the final agency action requirement was 

satisfied. They contend there was no final agency action until the BLM sent the February 

12 letters notifying them that the leases had been withdrawn. 

 As noted supra, the panel majority disagrees that the statute of limitations did not 

begin to run until the February 12 letters were sent. Rather, they agree that the 

limitations period began to run by February 6. Judge Lucero would hold that the “final 

decision of the Secretary” occurred on February 6 regardless of whether “final agency 

action” also occurred on that date. Judge Seymour would construe the two phrases 

synonymously, and would hold that both the Secretary’s decision and the agency action 

 3

 The Energy Companies argue that the six-day delay between the Secretary’s 

decision and the mailing of the BLM’s notice letters violated their right to procedural due 

process. They raised this issue for the first time in a Rule 59 motion, and the district 

court declined to consider it, citing the rule that post-judgment motions are not 

appropriate vehicles to “advance arguments that could have been raised in prior briefing.” 

Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). We agree with 

the district court that the Energy Companies failed to raise this issue at the appropriate 

time and have thus waived appellate review. See Proctor & Gamble Co. v. Haugen, 222 

F.3d 1262, 1270-71 (10th Cir. 2000) (appellate review waived “[w]hen an issue has not 

been properly raised below”). 
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were final by February 6.4

 Accordingly, we affirm the district court’s conclusion that the 

Energy Companies’ suit is time-barred. 

 

III

 In addition to concluding that the Energy Companies’ suit was filed out of time, a 

majority of the panel agrees that equitable tolling is not appropriate under the facts of this 

case. The district court also concluded that the Energy Companies were not entitled to 

equitable tolling. We review that determination for abuse of discretion. See Robinson v. 

Golder, 443 F.3d 718, 720 (10th Cir. 2006). Equitable tolling is granted sparingly. We 

have held that tolling is appropriate “when the defendant’s conduct rises to the level of 

active deception; where a plaintiff has been lulled into inaction by a defendant, and 

likewise, if a plaintiff is actively misled or has in some extraordinary way been prevented 

from asserting his or her rights.” United States v. Clymore, 245 F.3d 1195, 1199 (10th 

Cir. 2001) (quotation and alteration omitted). 

 In arguing that tolling is appropriate, the Energy Companies rely heavily on 

Turner v. Watt, 566 F. Supp. 87 (D. Utah 1983). Their reliance, however, is misplaced. 

The plaintiff in Turner sought to appeal the denial of his application for an oil and gas 

lease under the MLA. Id. at 88. He filed an appeal with the IBLA but temporarily left 

the country while the appeal was pending. Id. When the IBLA rejected his appeal, it 

 4

 In his separate opinion, Judge Tymkovich agrees with Judge Seymour that the 

“final decision of the Secretary” was “final agency action” in this case, but does not agree 

that the decision became final before February 12. 
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erroneously sent a notice to plaintiff’s previous address even though plaintiff had filed a 

notice of change of address. Id. Plaintiff learned of the decision when he returned to the 

country after the limitations period had expired. Id. The district court held: “Because of 

the agency’s error, plaintiff did not receive notice of the board's final decision. He was 

entitled to rely on the statute’s requirement that it be given, and the running of the period 

for appeal should not begin until notice is sent in accordance with the statute.” Id. at 89. 

 To the extent the Turner court interpreted the MLA’s limitations period as 

beginning when a party is notified of the Secretary’s decision, we reject such an 

interpretation for the reasons stated in Part II: The plain text of the MLA does not permit 

a notice-based construction. The Turner decision can be read, however, as tolling the 

limitations period because plaintiff did not receive notice of the IBLA decision until after 

the limitations period had run. In the event that an agency fails to notify a claimant of its 

decision until after a limitations period has expired, equitable tolling would clearly be 

appropriate. See Bowen v. New York, 476 U.S. 467, 481 (1986) (“Where the 

Government’s secretive conduct prevents plaintiffs from knowing of a violation of rights, 

statutes of limitations have been tolled until such time as plaintiffs had a reasonable 

opportunity to learn the facts concerning the cause of action.” (quotation omitted)). 

 This case also differs from Turner in an important manner. In Turner, the plaintiff 

did not learn of the decision until after his limitations period had expired due to agency 

error. In this case, the agency promptly notified the Energy Companies of the Secretary’s 

decision but a few days into the limitations period. We rejected a request for equitable 
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tolling under similar circumstances in Pfannenstiel v. Merrill Lynch, Pierce, Fenner & 

Smith, 477 F.3d 1155 (10th Cir. 2007). There, plaintiff was subject to a three-month 

limitations period beginning on the date he received an arbitrator’s decision. Id. at 1158. 

Two months into that term, he received notice that the arbitrator had lost all of the 

evidence submitted in the proceeding. Id. at 1157. Plaintiff filed a claim beyond the 

limitations period based on the lost evidence and we rejected his request for equitable 

tolling because the plaintiff 

could have served the defendants before the expiration of the three-month 

time limit. He had approximately one month left after he learned that the 

evidence was no longer available in order to timely file his motion to 

vacate, but he did not file it within that time period. The one-month time 

period provided [plaintiff] ample opportunity to serve the defendants in a 

timely fashion. Thus, equitable tolling does not apply. 

Id. at 1158. Similarly, the D.C. Circuit routinely denies equitable tolling unless a delay in 

notification “makes it impossible reasonably for the party to comply with the filing 

statute.” Gardner v. FCC, 530 F.2d 1086, 1091 n.24 (D.C. Cir. 1976). 

 When the Energy Companies received notice that their leases would not be issued, 

more than 80 days remained in their limitations periods. As in Pfannenstiel, they had 

“ample opportunity” to file their claims in a timely manner. 477 F.3d at 1158. They do 

not claim that the six-day delay between the Secretary’s decision and the BLM’s mailings 

meaningfully limited their ability to comply with the MLA’s statute of limitations. 

 Despite their receipt of notice a few days into the limitations period, the Energy 

Companies protest that they were unaware of the February 6 memo until it was served in 

the IBLA appeal with 45 days remaining in the limitations period. We note that 45 days 
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is still longer than the thirty days approved in Pfannenstiel, but can certainly imagine a 

case in which a plaintiff is made aware of a decision but kept in the dark as to the precise 

date the decision was made. And we agree that equitable tolling might be appropriate if 

such a plaintiff missed the filing deadline based on ignorance of the date of decision. 

This hypothetical plaintiff would qualify for equitable tolling because he would have 

“been lulled into inaction by a defendant.” Clymore, 245 F.3d at 1199. 

 In the case at bar, however, the government fully apprised the Energy Companies 

of its position on the limitations period. In the IBLA proceedings, the government 

explicitly stated that February 6 was the operative date. Consistent with this position, it 

challenged the Energy Companies’ reliance on the February 12 letters, arguing that “the 

BLM letters merely implement the Secretary’s February 6, 2009 decision to withdraw the 

subject parcels.” The Energy Companies confessed confusion as to “whether BLM’s 

decision or the Secretary’s February 6 memorandum was final,” Robert L. Bayless 

Producer, 177 IBLA at 84, but the IBLA could not comment on that issue citing the bar 

on “advisory opinions regarding matters in an appeal that we have no authority to 

consider,” id. at 85. 

 Thus, it is undisputed that the government communicated to the Energy 

Companies its position that February 6 was the date of the Secretary’s decision, and the 

companies acknowledged the possibility that the government’s position would hold sway. 

See id. at 84-85. Despite this knowledge, the Energy Companies gambled. They filed 

suit exactly 90 days after February 12, risking their claims on the court’s acceptance of 
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their limitations theory. This gamble did not pay off, and equitable tolling does not 

forgive “a garden variety claim of excusable neglect.” Irwin, 498 U.S. at 96. We 

conclude the district court appropriately exercised its discretion by denying equitable 

tolling. 

IV

 For the foregoing reasons, the judgment of the district court is AFFIRMED.