PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

IMPACT ENERGY RE SOURCES, LLC; PEAK ROYALTY HO LDINGS, LLC; QUESTAR EXPL ORATION 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-2- 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, (R obert S. Thompson, III, Beatty & Wozniak, P.C., Denver, Colorado, on the briefs ) for the Plaintiffs-Appellants. Robin Cooley, Earthjustice, Denver, Colora do (Steven Bloch and David Garbett, Southern Utah Wilderness Alliance on the briefs), for the Defendants-IntervenorsAppellees. Vivian H.W. Wang, United St ates Department of Justice, Environment & Natural Resources Division, Washington, D.C., (Ignaci o S. Moreno, Assistan t Attorney General, David C. Shilton, Tyler Welti, a nd Charles R. Scott, United St ates Department of Justice, on the brief) for Defendants-Appellees. Kent Holsinger and Laura L. Chartrand, Hols inger Law, LLC, Denver, Colorado, filed a brief for Amicus Curiae Western Energy Allia nce on behalf of Pl aintiffs-Appellants.

Before LUCERO , SEYMOUR , and TYMKOVICH , Circuit Judges.-3- 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”) aucti on (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, 20 09, press conference and memorialized his determination in a February 6 memorand um 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 issu ed. 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-b arred under the Mineral Leasing Act (“MLA”), which provides that “[n]o action contesting a decision of the Secret ary 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 re lating 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 o ccurred no later than February 6, a nd thus, the suit is time-barred. As explained in their separate concurren ces, however, the panel majority would employ somewhat differing analyses in reaching this re sult. Judge Lucero wo uld 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 Admini strative Procedure Act (“APA”) had accrued-4- at that time. Judge Seymour would hold that the word “final” bear s 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 nece ssary, but disagrees w ith the majority’s

conclusion that the suit is time-barred as explained in his dissent. The panel majority also ag rees with the district cour t that the Energy Companies are not entitled to equitable tolling in this ma tter. The BLM notified the high bidders just six days after the Secretary made his decisi on. And the government notified the Energy Companies of its position that February 6 was the operative date during agency proceedings. Although the Ener gy Companies had time to prep are their claims before the limitations period expired, they gambled th at a court would accept their proffered limitations theory. Equitable tolling is no t 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 object ed to the decision to lease many of the parcels, and after consulting with that agency, th e BLM revised its auction to include 132 rather than 241 pa rcels as originally planned. Several environmental organizations, including intervenor Southern Utah-5- Wilderness Alliance (“SUWA”), filed administrativ e protests of the proposed lease sales.

The notice of auction informed potential bidders that the BLM could not actually issue any leases until such pr otests were resolved. It stated that protested leases would nonetheless be auctioned and that the high bi dder 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 gr oups 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, 2 009) (unpublished). On December 19, 2008, th e 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 bi dders. See S. Utah Wilderne ss Alliance, 2009 U.S. Dist. LEXIS 30664, at *9. It found that the e nvironmental groups were likely to succeed on

their claims under the National Environm ental 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-6- 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 or der 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 Fe bruary 4, 2009, he held a press conference to announce that the 77 parcels subject to th e temporary restraini ng order would not be leased. He stated: “I have directed [the BL M] 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 explai ned, “[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 pre ss release announcing Salazar’s decision on its website, stating:

In its last weeks in offi ce, the Bush Administration rushed ahead to sell oil and gas leases at the doorstep of so me of our nation’s most treasured landscapes in Utah. We need to responsibly develop our oil and gas supplies to help us reduce our dependen ce on foreign oil, but we must do so in a thoughtful and balan ced 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 ga s development. I am also concerned that there was inadequate consultati on with other agencies, including the National Park Service.

The announcement was covered exte nsively 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-7- Kaufman, Interior Secretary Cancels Drilli ng Leases on Public Lands in Utah, N.Y. Times, Feb. 5, 2009. The following day, February 5, the federa l 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 Sala zar . . . 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 th at case. Several attorneys that now represent the Energy Companies had entere d 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 st ated, “On February 4, 2009, Secretary of

the Interior Ken Salazar announced the decision to withdraw oil and ga s leases offered on 77 parcels . . . . A written decision withdraw ing the leases will be needed to document the process.” The State Director indicated th at once her office rece ived the “officially documented decision from the Secretary,” it would begin the proce ss of refunding the payments received from winning bidders. Secretary Salazar signed and issued a me mo to the BLM’s Utah State Director the following day, February 6, stating:

There has been considerable contr oversy surrounding this lease sale, including questions about the degree of coordination between the BLM and other Federal agencies, including th e National Park Service, and the adequacy of the environmental re view and analysis performed in-8- 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 ap plicable laws, regulations, and agency procedures, please take all necessary ac tions to effectuate this withdrawal, including promptly notifying the hi gh bidders and returning any monies received by BLM in connectio n 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 leas es explaining that the parcels had been

withdrawn. The letters state that “Ken Salazar ha s directed the BLM to withdraw these parcels from the December 19, 2008 Oil and Ga s Lease Sale.” They also authorized a refund of the bidders’ payments. The Energy Companies atte mpted to appeal the lease withdrawals by filing an administrative appeal with the Interior Bo ard 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 Secretar y.” 43 C.F.R. § 4.410(a)(3) (withdrawing IBLA authority if “a decision has been approv ed 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 im plement the Secretary’s February 6, 2009 decision to withdraw the subject parcels fro m further consideration in the December 19,-9- 2008 oil and gas lease sale.” The February 6 transmittal was att ached 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 or der of dismissal states: “On February 12, 2009, BLM issued decisions re lated to 53 of those parcel s from which this appeal is taken.” Id. at 84. However, the order ac knowledged the BLM’s position that the agency letters “merely implement the Secretary’s dire ctive.” 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 Februa ry 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 Pr ocedure Act.” Id. Because the Secretary “specifically directed BLM to take a partic ular action,” the IBLA concluded it lacked jurisdiction over the appeal. Id . The IBLA rejected appellant s’ 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 wi thdraw the leases as violat ions 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-10- February 6 transmittal. And beca use plaintiffs did not file suit within ninety days of that decision, they did not fit w ithin 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 11 05, 1108 (10th Cir. 2011). “[T]he party asserting jurisdiction bears the burden of pr oving that sovereign immunity has been waived.” Sydnes v. United States, 52 3 F.3d 1179, 1183 (10th Cir. 2008) (citation omitted).

Plaintiffs in this case invoke the limite d waiver of sovereign immunity provided for in the APA. Under that provision, ag grieved parties may cha llenge “[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. Howe ver, the APA prohibits review of agency decisions “to the extent that . . . statutes pr eclude 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 leas e shall be maintained unless such action is commenced or taken within ninety days after the final decisi on of the Secretary relating to such matter.”-11- 30 U.S.C. § 226-2. This st atutory deadline constitutes “a condition to the waiver of sovereign immunity and thus mu st 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 statut e 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 requiremen t that “[p]rompt notice shall be given of the denial in whole or in part of a written application, petiti on, or other request of an interested person made in connection with any agency proceedi ng.” 5 U.S.C. § 555(e). They further note that the “APA governs agency procedures in all admini strative 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 th e extent that it does so expr essly,” 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 pr ovision. Congress can, and often does, elect to begin a limitations period when a party receives no tice. 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 jurisdic tional. We overruled Geosearch on other grounds in Reppy v. Departme nt of the Interior, 874 F.2d 728, 730 n.5 (10th Cir. 1989), noting that a recent Supreme Court case mi ght undermine Geosearch’s jurisdictional holding. For purposes of this case, whether th e statute of limitations is jurisdictional is immaterial because the government moved to dismiss based on the statute of limitations.-12- final decision by the Board . . . is received”). But the ML A’s limitations period is not notice-based. The MLA very clea rly starts the clock on the da te 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 a nother 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. Mars h, 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 clai m’s accrual rather than within six years of

notice. 2 See id.; see also 28 U.S.C. § 2401 (a ctions against the United States must be filed “within six years after the right of ac tion first accrues”). In other words, the limitations provision in 28 U.S. C. § 2401, not the APA’s noti ce 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 to lling, 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 ‘in quiry notice’” (quotations omitted)). In this case, for example, the Energy Co mpanies argue that their clai ms accrued on February 12, when the BLM mailed its letters. But the Energy Companies pr esumably received those letters a day or two later.-13- date the limitations pe riod begins to run. 3 The Energy Companies furt her argue that the MLA’s statute of limitations could not have begun to run until the BLM engaged in “final ag ency action” under the APA. See 5 U.S.C. § 704. They note that th eir claims arose under 5 U.S.C. § 704, and accordingly could not have be en filed until the final agency action requirement was satisfied. They contend there was no final ag ency action until the BLM sent the February 12 letters notifying them that th e leases had been withdrawn. As noted supra, the panel majority disagr ees 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” o ccurred on February 6 regardle ss 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 ar gue that the six-day delay between the Secretary’s decision and the mailing of the BL M’s notice letters violated their right to procedural due process. They raised this i ssue for the first time in a Ru le 59 motion, and the district court declined to consider it, citing th e 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 (10t h Cir. 2000). We agree with the district court that the En ergy 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”).-14- were final by February 6. 4 Accordingly, we affirm the di strict 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 th at equitable tolling is not appropriate under the facts of this

case. The district court also concluded th at the Energy Companies were not entitled to equitable tolling. We review that determinat ion for abuse of discre tion. See Robinson v. Golder, 443 F.3d 718, 720 (10t h Cir. 2006). Equitable tolling is granted sparingly. We have held that tolling is appropriate “when th e defendant’s conduct rises to the level of active deception; where a plaintiff has been lulled into inacti on by a defe ndant, and likewise, if a plaintiff is actively misled or has in some extraordinary way been prevented from asserting his or her right s.” United States v. Clymor e, 245 F.3d 1195, 1199 (10th Cir. 2001) (quotation and alteration omitted). In arguing that tolling is appropriate, the Energy Companie s rely heavily on Turner v. Watt, 566 F. Supp. 87 (D. Utah 19 83). 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 re jected his appeal, it

4 In his separate opinion, Judge Tymkovich agrees with Judge Seymour that the “final decision of the Secretary” was “final ag ency action” in this cas e, but does not agree that the decision became fi nal before February 12.-15- erroneously sent a notice to plaintiff’s previo us address even though plaintiff had filed a notice of change of address. Id. Plaintiff le arned 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, plai ntiff 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 accorda nce with the statute.” Id. at 89.

To the extent the Turner court inte rpreted the MLA’s limitations period as beginning when a party is notif ied 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 de cision can be read, however, as tolling the limitations period because plaintiff did not re ceive 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 e xpired, equitable tolli ng would clearly be appropriate. See Bowen v. New York, 476 U.S. 467, 481 (1986) (“Where the Government’s secretive conduct prevents plain tiffs from knowing of a violation of rights,

statutes of limitations have been tolled un til such time as plaintiffs had a reasonable opportunity to learn the fact s concerning the cause of ac tion.” (quotation omitted)).

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

did not learn of the decision until after his li mitations period had e xpired due to agency error. In this case, the agen cy promptly notified the Energy Companies of the Secretary’s decision but a few days into the limitations pe riod. We rejected a request for equitable-16- tolling under similar circumstan ces 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 receiv ed an arbitrator’s deci sion. Id. at 1158. Two months into that term, he received notic e 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 reject ed his request for equitable tolling because the plaintiff

could have served the defendants befo re 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 or der 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 se rve the defendants in a timely fashion. Thus, equitable tolling does not apply. Id. at 1158. Similarly, the D. C. Circuit routinely denies equ itable tolling unless a delay in notification “makes it impossible reasonably for the party to comp ly with the filing statute.” Gardner v. FCC, 530 F.2d 1086, 1091 n.24 (D .C. Cir. 1976). When the Energy Co mpanies received notice that thei r 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 we re unaware of the February 6 memo until it was served in the IBLA appeal with 45 days remaining in the lim itations period. We note that 45 days-17- is still longer than the thir ty days approved in Pfannenstiel, but can certainly imagine a case in which a plaintiff is made aware of a de cision but kept in the dark as to the precise date the decision was made. And we agree th at equitable tolling might be appropriate if such a plaintiff missed the f iling deadline based on ignorance of the date of decision. This hypothetical plaintiff would qualify for equitable to lling because he would have “been lulled into inaction by a defendant .” Clymore, 245 F.3d at 1199. In the case at bar, however, the governme nt fully apprised th e Energy Companies of its position on the limitations period. In the IBLA proceedings, the government explicitly stated that February 6 was the opera tive date. Consistent with this position, it challenged the Energy Companie s’ 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 Ener gy Companies confessed confus ion as to “whether BLM’s decision or the Secretary’s February 6 me morandum was final,” Robert L. Bayless Producer, 177 IBLA at 84, but the IBLA c ould 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 go vernment 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 th e government’s positi on would hold sway. See id. at 84-85. Despite this knowledge, the Energy Companies gambled. They filed suit exactly 90 days after February 12, riski ng their claims on the court’s acceptance of-18- their limitations theory. Th is gamble did not pay off, and equitable tolling does not forgive “a garden variety clai m of excusable neglect.” Ir win, 498 U.S. at 96. We conclude the district court appropriately exercised its discretion by denying equitable tolling.

IV For the foregoing reasons, the ju dgment of the district court is AFFIRMED

.