PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ MERRILL CHANCE, Plaintiff - Appellant,

v. RYAN ZINKE, in his o fficial capacity as Secretary of the United States Department of Interior; UNITE D STATES BUREAU OF INDIAN AFFAIRS, an agency within the United States Department of Interior; DARRYL LACOUNTE, in his official capacity as Director o f the United States Bureau of Indian Affairs; GREAT SOUTHWESTERN E XPLORATION, INC., an Oklahoma corporation, Defendants - Appellees.

------------------------------ PAWNEE NATION OF OKLAHOMA; WALTER R. ECHO-HAWK, Amici Curiae. No. 17-5057

________________ _________________ Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:16-CV -00549-JHP-FHM)

________________ _________________ Donald A. Lepp (Gen tner F. Drummond, Garry M. Gaskins, II, and Logan L. James with him on the briefs), Drummond Law , PLLC, Tulsa, Oklahoma, for Me rrill Chance, Plaintiff-Appellant. FILED United States Court of Appeals Tenth Circuit 

### August 6, 2018
Elisabeth A. Shumaker Clerk of Court2 Tamara N. Rountree, Environmental & Natural Resources Division, United States Department of Justice, Washington, D.C. (Jeffrey H. Wood, Eric Grant, Mark R. Haag, and Jody H. Schwarz, Environment al & Natural Resources Division , United States Department of Justice, Washingto n, D.C., and Charles R. Babst, Jr., Kristen D. Kokinos, and Stephen L. Simpson, Office o f the Solicitor, United States Department of the Interior, Washington, D.C., with her on the brief), for Ryan Zinke, Darry l LaCounte, and United States Bureau of Indian Affair s, Defendants-Appellees. James D. Sicking, Jr., Tulsa, Oklahoma (Thomas Mortensen, Tulsa , Oklahoma, with him on the brief), for Great Southwest ern Exploration, Inc., Defend ant-Appellee. Michael S. Freeman, Earthjustice, Denver, Colorado (Yuting Chi, Earthjustice, Denver, Colorado, and Don Mason, Attorne y General, Pawnee Nation of Okl ahoma, Pawnee, Oklahoma, with him on the brie f) for the Pawnee Nation of Oklah oma and Walter R. Echo-Hawk, Amici Curiae.

________________ _________________ Before LUCERO , PHILLIPS , and MORITZ , Circuit Judges.

________________ _________________ MORITZ , Circuit Judge.

________________ _________________ Merrill Chance, a landowner in O sage County, Oklahoma, sued th e government 1 to void a lease and various per mits that allow Great Southwest ern Exploration, Inc. (GSE) to drill for oil and gas beneath his pr operty. He also seeks damages from GSE for trespassing on his property. The district court ruled that Chance’s claims against the gove rnment were untimely under 28 U .S.C. § 2401(a);

1 Chance named as defendants the Bureau of Indian Affairs (BIA), Department of Interior Secretary Sally Jew ell in her offic ial capacity, an d BIA Director Michael Black in his official capacity. R yan Zinke has since succeeded Jewell as interior secretary, and Darryl LaCounte h as since succeeded Black as act ing BIA director. Zinke and LaCounte thus automatically substitu te for Jewell and Black as defendants. See Fed. R. App. P. 43(c)(2). We refe r to these defendants collecti vely as “the government.”3 thus, it reasoned, it lacked subj ect-matter jurisdiction to hea r these claims and therefore dismissed them. It als o dismissed Chance’s claims aga inst GSE. We agree with the district cour t that Chance’s claims against the government are untimely. But the Supreme Cour t has warned us to beware of “profligate use of the term ‘jurisdiction.’” Sebelius v. Auburn Reg’l Med. Ctr ., 568 U.S. 145, 153 (2013). Today we heed that warni ng and hold that the district c ourt wrongly concluded it lacked subject-matte r jurisdiction over Chance’s c laims against the government. Therefore, we reverse the distri ct court’s order dismissing Cha nce’s claims against the government for lack of subject-matter jurisdiction and instruct the district court to dismiss those claims forfailure to state a claim. We affirm the district court’s judgment over Chance’s claims aga inst GSE because, to the exten t Chance’s claims against the government fail, the district court properly declin ed to exercise supplemental jurisdiction over Chance’s claims against GSE. Background The controversy surrounding Chan ce’s property stems from the g overnment’s unusual presence in Osage County . Before the turn of the twenti eth century, Osage County was a tribal reservation belonging to the Osage Nation. See Osage Nation v. Irby , 597 F.3d 1117, 1120 ( 10th Cir. 2010). But C ongress disestabli shed the reservation in 1906 upon Oklahom a’s induction into the union. See id. At the same time, Congress severed the surface estate from its subterranean mineral estate. Id. It divided the surface estate and di stributed most of the parcels to tribal members. Id. at4 1120–21. But importantly, the gove rnment retained the subterran ean estate in trust for the Osage Nation’s benefit. See id. at 1120. Today, Department of Interior re gulations task the Osage Agency of the BIA with managing this trust. See 25 C.F.R. §§ 226.1–226.46. T hese regulations give the Osage Agency authority to lease tr acts of the subterranean esta te, with the Osage Tribal Council’s permission. § 226 .2(b). The Osage Agency exerc ises significant oversight over these leases. Among other responsibilities, it m ust approve all new oil leases, id. ; assignments of existin g leases, § 226.15(b); and drilling permits, § 226.16(b). Chance is the surface owner of a tract of land in Osage County. In 1963, the Osage Agency granted the Eason O il Company (Eason) an oil lease for deposits underlying Chance’s property . Eason drilled two wells in 1964 t hat remain in operation today. With the BIA’s approval, Eason assigned its le ase to GSE in 1991. The BIA granted GSE permits to d rill three new wells that same year. Two of these wells remain in operation. Chan ce maintains that the constructi on and operation of these wells has damag ed his surface property in various ways ov er the years. In October 2016—25 years after Ea son assigned its lease to GSE and the BIA granted GSE permits to drill ne w wells on the lease—Chance file d this lawsuit. He argued that 42 U.S.C. § 4332(c), p art of the National Environme ntal Policy Act (NEPA) of 1969, required the Osag e Agency to conduct site-speci fic environmentalimpact assessments before approvi ng Eason’s assignment to GSE a nd GSE’s new drilling permits. And he alleged t hat the Osage Agency never co nducted these5 assessments. Chance also asserte d that the Osage Agency failed to notify his predecessors-in-interest that it a pproved the new permits. Furt her, he contended that the Osage Agency improperly took various other unknown actions related to his property without conducting site-s pecific environmental-impact assessments or notifying him or his pre decessors-in-interest. Additionally, Chance asserted tha t the Osage Agency’s failure t o comply with NEPA reflects systemic problems . He alleged that for decades, t he Osage Agency had been relying only on an asses sment it conducted in 1979 tha t evaluated the general impact of the Osage Co unty drilling program rather than conducting sitespecific environmental-impact a ssessments, as Chance argued NEP A requires. Chance further alleged that the O sage Agency attempted to conce al its noncompliance with NEPA. The government moved to dismiss Chance’s claims a gainst it for lack of subject-matter jurisdiction under Federal Rule of Civil Procedu re 12(b)(1), and GSE moved to dismiss Chance’s claims against it for failure to stat e a claim under Rule 12(b)(6). The district court gr anted both motions. It first rul ed that Chance’s claims against the government were un timely under § 2401(a), which est ablishes a six-year statute of limitations for nontort claims a gainst the governmen t. Chance urged the district court to equitably toll § 2401(a)’s limitations period . But the district court determined that § 2401(a) is a ju risdictional bar and thus not subject to equitable tolling. Alternatively, it ruled that Chance wasn’t entitled to equitable tolling under6 the facts of this case. The dist rict court further ruled that C hance failed to exhaust his administrative remedies. And it denied Chance’s motion for juri sdictional discovery. The district court then concluded that Chance’s claims against GSE necessarily relied on his claims against the government, so it granted GSE’ s Rule 12(b)(6) motion. It alternatively declin ed to exercise supplemental juri sdiction over Chance’s claims against GSE and dismissed for lack of subj ect-matter jur isdiction. Chance appeals the order granting both defendants’ motions and denying his motion for jurisdictional discovery. Analysis I. Chance’s Claims Against the Government A. Subject-Matter Jurisdiction Chance appeals the district cour t’s order granting the governm ent’s Rule 12(b)(1) motion. We review the d istrict court’s ruling on this motion de novo, see Butler v. Kempthorne , 532 F.3d 1108, 1110 (10th Cir. 2008), and conclude that the court erred by treati ng § 2401(a) as a lim it on its jurisdictio n. At the outset, the government i nvites us to bypass this jurisd ictional question by (1) assuming the district cour t erred by treating § 2401(a) as jurisdictional but (2) nevertheless affirming becaus e Chance fails to state a clai m on which relief can be granted. We must decline this invitation. The Supreme Court has made clear that courts may not exercise “hypothe tical jurisdiction” to reach th e merits of a case, even if proceeding in such a manner mi ght offer a more straightforwa rd path to its resolution. Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 94 (1998) (quoting7 United States v. Troescher , 99 F.3d 933, 934 n.1 (9th Cir. 1996), overruled by Steel
Co. , 523 U.S. 83). Thus, the district c ourt couldn’t assume it had j urisdiction to dismiss Chance’s claims under Ru le 12(b)(6). And we can’t make that assumption either. Accordingly, the question before us is whether the dist rict court correctly concluded it lacked subject-matte r jurisdiction over Chance’s c laims. “For the last decade, the Suprem e Court has been on a mission t o rein in profligate uses of ‘jurisdicti on,’ a word with ‘many, too many, meanings.’” Herr v.
U.S. Forest Serv. , 803 F.3d 809, 813 (6 th Cir. 2015) (quoting Arbaugh v. Y & H Corp. , 546 U.S. 500, 510 (2006)); see also, e.g. , Auburn Reg’l , 568 U.S. at 148–49 (holding that filing deadline for administrative appeal from de nial of certain Medicare reimbursements isn’t ju risdictional bar to appeal); Henderson ex rel.
Henderson v. Shinseki , 562 U.S. 428, 431 (2011) (holdi ng that filing deadline for appeal from Board of Veterans’ A ppeals to United States Court o f Appeals for Veterans Claims isn’t juri sdictional bar to appeal); Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154, 157 (2010) (holding that Copyright Act’s registra tion requirement isn’t jurisdictional bar to Copyright Act lawsuit); Arbaugh , 546 U.S. at 516 (holding that Title VII’s minimum-size requireme nt for employer coverage isn’ t jurisdictional bar to Title VII lawsuit). The Court’s campaign is rooted i n legitimate concern. Treating a rule as jurisdictional is more than just semantics; it has real-world e ffects on the parties and can be detrimental to judicial economy. See Henderson , 562 U.S. at 434. A case can be dismissed for lack of subject -matter jurisdiction at any sta ge in the litigation—or8 even after litigation has ended— so “[t]ardy jurisdictional obje ctions can . . . result in a waste of adjudicatory resource s and can disturbingly disarm l itigants.” Auburn Reg’l , 568 U.S. at 153; see also Henderson , 562 U.S. at 435 (“Indeed, a party may raise such an objection even if the party had previously acknow ledged the trial court’s jurisdiction. And if the trial court lacked jurisdictio n, many months of work on the part of the attorneys and the court may be wasted.” (int ernal citation omitted)). Additionally “[b]randing a rule as going to a court’s subject-m atter jurisdiction alters the normal operation of our adver sarial system” by requiring co urts to sua sponte address that rule. Henderson , 562 U.S. at 434. “Because the consequences that a ttach to the jurisdictional lab el may be so drastic, [the Court has] tried i n recent cases to bring some di scipline to the use of this
term.” Id. at 435. Therefore, “a rule shoul d not be referred to as jurisd ictional unless it governs a court’s adjudicatory capacity, that is, its subjec t-matter or personal jurisdiction. Other rules, eve n if important and mandatory . . . should not be given the jurisdictional brand.” Id. (internal citations omitted). To that end, the Court has “adopted a ‘readily administrable bright line’ for determining whether to classify a statutory limitation as jurisdic tional”: we may treat a rule as jurisdictional only when “Congress has ‘clearly state[d]’ that the rule is jurisdictiona l.” Auburn Reg’l , 568
U.S. at 153 (alteration in original) (quoting Arbaugh , 546 U.S. at 515–16). With these concerns in mind, we now turn to the district court’ s jurisdictional ruling.9 Section 2401(a) requires that all nontort actions against the g overnment be filed within six years of the d ate on which the right accrues. Chance doesn’t dispute that his claims accrued in 1991 , when the government approved G SE’s lease assignment and drilling permits. Nor does he dispute that he fi led his October 2016 lawsuit far outside this six-y ear deadline. Instead, he argues that he’s entitled to equitable tolling to extend thatdeadline because (1) the gover nment didn’t notify his predecessors-in-interest that itapproved GSE’s lease assignmen t and new drilling permits; and (2) the governmentconcealed the fact that it didn ’t conduct site-specific environmental-impact assessment s when it approved the assignmen t and the permits. The district court determined t hat § 2401(a) presents a jurisdi ctional requirement for lawsuits againstthe government. And because co urts can’t toll statutes of limitations that depr ive them of jurisdiction, it r ejected Chance’s equitable-tolling argument. Chan ce asks us to take the opposite path and hold that § 2401(a) isn’t jurisdictional and can thus be equitably tolled . This presents an issue of first impression for this cour t. Other circu its are split. Compare Herr v. U.S.
Forest Serv. , 803 F.3d 809, 812 (6th Cir. 2 015) (holding § 2401(a) isn’t jurisdictional); Clymore v. United States , 217 F.3d 370, 374 (5t h Cir. 2000) (same);
and Cedars-Sinai Med. Ctr. v. Shalala , 125 F.3d 765, 770 (9th Cir. 1997) (same), with Mendoza v. Perez , 754 F.3d 1002, 1018 (D.C. C ir. 2014) (characterizing § 2401(a) as jurisdictional); Ctr. for Biological Di versity v. Hamilton , 453 F.3d 1331, 1334 (11th Cir. 2006) ( per curiam) (same); Hopland Band of Pomo Indians v. United10 States , 855 F.2d 1573, 1576–77 (F ed. Cir. 1988) (same); and Konecny v. United
States , 388 F.2d 59, 61–62 (8th Cir. 1967) (same). The Supreme Court has “made plai n that most time bars are nonju risdictional.” United States v. Kwai Fun Wong , 135 S. Ct. 1625, 1632 (201 5). This is true “even when the time limit is important(most are) and even when it is framed in mandatory terms (again, most are).” Id. Thus, “Congress must do so mething special, beyond setting an exception-free deadli ne, to tag a statute of limitat ions as jurisdictional.”
Id. ; see also Irwin v. Dep’ t of Veterans Affairs , 498 U.S. 89, 95–96 (1990) (creating rebuttable presumption that sta tutes of limitations on claims a gainst government are subject to equitable tolling). T he Supreme Court—like this cour t—hasn’t specifically resolved whether § 2401(a) is ju risdictional. And the Court has reached two different conclusions about two related statutes of limitations. First, the Court concluded that 28 U.S.C. § 2501, which governs lawsuits brought against the government in the Court of Federal Claims, is jurisdictional. See
John R. Sand & Gravel Co. v. United States , 552 U.S. 130, 132 (2008). In John R.
Sand , the Court recognized its admonition in Irwin that statutes of limitations on claims against the government a re presumptively subject to toll ing (and are thus nonjurisdictional), 2 but it nevertheless concluded this presu mption was rebutted by

2 The Court in Irwin addressed courts’ power to toll statutes of limitations for claims against the government w ithout expressly framing the inq uiry as a question of jurisdiction. See 498 U.S. at 95–96. But in John R. Sand , the Court apparently accepted that Irwin also stands for the more genera l proposition that statutes of limitations for claims against th e government are presumptively nonjurisdictional. Tellingly, John R. Sand addressed specifically whether§ 2501 could be waived—not11 pre- Irwin precedent dating back to th e nineteenth century. See id. at 136–138. It explained that it directly held in these prior cases that § 250 1 was jurisdictional and that Irwin ’s general rule didn’t overturn these cases. Id. at 138; see also Soriano v.
United States , 352 U.S. 270, 271 (1957); United States v. New York , 160 U.S. 598, 616–17 (1896); De Arnaud v. United States , 151 U.S. 483, 495–96 (1894); Finn v. United States , 123 U.S. 227, 232–33 (1887); Kendall v. United States , 107 U.S. 123, 125–26 (1883). The Court even r ecognized that its holding creat ed an anomaly. But it explained that “the earlier case s lead, at worst, to different interpretations of different, but similarly worded, statutes; they do not produce ‘unworkable’ law.”
John R. Sand , 552 U.S. at 139 (quoting United States v. IBM Corp. , 517 U.S. 843, 856 (1996)). Several terms later, the Court c onsidered whether § 2401(b)’s s tatute of limitations, which governs tort cl aims against the government, is jurisdictional. See Kwai Fun Wong , 135 S. Ct. at 1629. This time—free from th e clutches of stare decisis—the Court inquired whethe r Congress had clearly stated that § 2401(b) is jurisdictional. See id. at 1632. And it concluded that C ongress “provided no clear statement indicating that § 2401( b) is the rare statute of limi tations that can deprive a court of jurisdiction.” Id.

whether it could be tolled. See 552 U.S. at 132–33. But t he Court considered Irwin ’s inquiry as identical to the one before it in John R. Sand , save for the difference in statutes. See id. at 136–37. And because not all st atutes of limitations that pos e nonjurisdictional ba rs are subject to equitable tolling, see Kwai Fun Wong , 135 S. Ct. at 1631 n.2, Irwin only would have been relevant to the Court’s waiver inquiry if it implicated jurisdiction more gen erally as opposed to just equit able tolling.12 In so holding, the Court rejec ted the government’s argument that because § 2401(b) is similarly worded t o § 2501, the Court should follo w John R. Sand and conclude that § 2401(b) i s jurisdictional too. Id. at 1634. The Court rather emphatically explained that the one and only r eason it conclude d in John R. Sand that § 2501 is jurisdictional is becau se stare decisis required it t o. See id. at 1636 (“What is special about [§ 2501]’s deadline, John R. Sand recognized, comes merely from this Court’s prior rulings.”). And in Kwai Fun Wong , stare decisis “play[ed] no role” because the Court “ha[d] not pre viously considered whether § 24 01(b) restricts a court’s authority.” Id. Here, Chance invites us to follow Kwai Fun Wong and hold that § 2401(a) is nonjurisdictional because Congre ss hasn’t clearly stated otherw ise and the Court hasn’t directly held otherwise . If only it were so simple. As e xplained in some detail below, despite its proximity in the federal code to § 2401(b), § 2401(a) is a closer genetic relative to § 2501. And the government cautions that § 2401(a)’s and § 2501’s shared legislative history compels us to interpret the se statutes identically. Thus, the government argue s the court should follow John R. Sand and conclude that like § 2501, § 2401(a) is jurisdictional. Section 2501 originated in an 1863 statute. See Act of Mar. 3, 1863, ch. 92, § 10, 12 Stat. 765, 767. In the y ears that followed, the Court twice held that this statute of limitations was jurisdictional be cause it acted as a restriction on the government’s soverei gn-immunity waiver. See Finn , 123 U.S. at 232–33; Kendall , 107 U.S. at 125–26. T hen, in 1887, Congress greatly expanded it s sovereign-13 immunity waiver with the Tucker Act. See Tucker Act, ch. 359, 24 Stat. 505 (1887);
Herr , 803 F.3d at 815. The Tucker Act contained two parts—the “Big Tucker Act” and the “Little Tucker Act.” Herr , 803 F.3d at 815. The Big T ucker Act expanded the Court of Claims’ jurisdiction. See Tucker Act § 1; Herr , 803 F.3d at 815. The Little Tucker Act gave the district cour t concurrent jurisdiction with the Court of Claims over claims against the governmentfor $1,000 or less in damage s. See Tucker Act § 2; Herr , 803 F.3d at 815. The Tucker Ac t also created a new six-year s tatute of limitations that governed all laws uits against the government—w hether filed in the Court of Claims or t he district court. See Tucker Act § 1; Herr , 803 F.3d at 815. But importantly, it didn’t repeal the 1863 statute of limitations, so the two provisions coextensively governed lawsuit s in the Court of Claims. See United States v.
Greathouse , 166 U.S. 601, 605 (1897). In 1911, Congress created separ ate statutes of limitations forthe Big and Little Tucker Acts. Herr , 803 F.3d at 816. For the Big T ucker Act, it borrowed language from the 1863 statut e of limitations. See Act of Mar. 3, 1911, ch. 231, § 156, 36 Stat. 1087, 1139. For the Little TuckerAct, Congress retained the la nguage from the Tucker Act’s statute of limitations. See id. § 24(20), 36 Stat. 1087, 1093; Herr , 803 F.3d at 816. Then, in 1948, Congr ess amended the Little Tucker Act’s statute of limitations so that it would appl y to all civil actions against the government as opposed to only low-value claims. See Act of June 25, 1948, c h. 646, § 2401(a), 62 Stat. 869, 971. And by this same act, Congress separated the Li ttle Tucker Act’s statute of limitations from its j urisdictional grant and moved the statute of limitations14 to § 2401(a). Compare id. (providing statute of limitations), with id. § 1346(a), 62 Stat. 869, 933 (providing jurisd ictional grant). It also codifi ed the Big Tucker Act’s statute of limit ations at § 2501. See id. § 2501, 62 Stat. 869, 976. The government argues th at this history rebuts Irwin ’s presumption that § 2401(a) isn’t jurisdictional . Essentially, the government mai ntains that the Tucker Act gave the district courts conc urrent jurisdiction with the C ourt of Claims—albeit capped at claims of $1,000. Thus, because § 2501’s predecessor was jurisdictional, the Tucker Act’s statu te of limitations mus t have been jurisdic tional too; otherwise the district courts’ jurisdicti on would have been broader than the Court of Claims’ jurisdiction. And, the reasoning goes, because we can trace § 2 401(a) back to the Tucker Act’s statute of limitations, § 2401( a) must also be jur isdictional. This argument fails for two reas ons. First, the Court made clea r in John R.
Sand and again in Kwai Fun Wong that the only reason § 25 01 is jurisdictional is because the Court had directly concluded as m uch in pre- Irwin precedent. See Kwai Fun Wong , 135 S. Ct. at 1636; John R. Sand , 552 U.S. at 138. And regardless of how strong an argument there is tha t we should interpret §§ 2401(a) and 2501 identically, stare decisis “plays no role” in interpreting the former. Kwai Fun Wong , 135 S. Ct. at 1636. Section 2401(a) originated in the Tucker Act, while § 250 1 originated in the 1863 statute. And the cases t hat the Court followed in John R. Sand all dealt with either the original 1863 statute, see New York , 160 U.S. at 616; De Arnaud , 151 U.S.15 at 495; Finn , 123 U.S. at 231; Kendall , 107 U.S. at 124, or § 2501 itself, see Soriano , 352 U.S. at 271 (1957). 3 Next, even if the original TuckerAct’s statute of limitations was meant to be jurisdictional, that changed when Congress codified it at § 240 1(a). At that point, Congress separated the statute of limitations from the jurisdic tional grant and enlarged it to cover all nontort claims against the government. As the Sixth Circuit concluded, this “demonstrates tha t § 2401(a) was designed to se rve as a standard, mine-run statute of limitati ons without jurisdictional qualitie s.” Herr , 803 F.3d at 817. Further, if Congress intende d identical statutes of limita tions to govern the Big Tucker Act and the Little Tucker Act, it’s not clear why Congre ss would have created separate, differently worded st atutes of limitations in 1911. 4

3 The government asserts that the Court held in United States v. Wardwell , 172 U.S. 48 (1898), that the Tucker A ct’s statute of limitations wa s jurisdictional. But Wardwell too dealt with the 1863 statute of limitations, not the TuckerAct. See 172 U.S. at 52 (discussing 1863 stat ute of limitations). The govern ment points to no case that actually interprets § 2401( a) or its predecessors as juris dictional. 4 For the Big Tucker Act, the 19 11 amendment provided, “Every cl aim against the United States cognizable by th e Court of Claims, shall be f orever barred unless the petition setting forth a stat ement thereof is filed in the court . . . within six years after the claim first accrues.” Act of Mar. 3, 1911, ch. 231, § 156, 36 Stat. 1087, 1139. This language originated in the 1863 statute of limitatio ns. See Act of Mar. 3, 1863, ch. 92, § 10, 12 Stat. 765 , 767. For the Little Tucker Ac t, the 1911 amendment provided “[t]hat no suit against the Government of the United S tates shall be allowed under this paragraph unless the sa me shall have been brought wi thin six years after the right accrued for which the claim is made.” Act of Mar. 3, 1911, ch. 231, § 24(20), 36 Stat. 1087, 1093. Thi s language originated in the Tucker Act. See Tucker Act § 1. We won’t dwell on what Congress specifically intended by the di fferences in this language because Kwai Fun Wong teaches us that there’s limited utility to comparing the language in statutes of limitations. See 135 S. Ct. at 1634–35. We16 Given the Court’s strong recen t emphasis on limiting jurisdict ional bars and its unusually frank recognition in John R. Sand and Kwai Fun Wong that stare decisis and stare decisis alone renders § 2501 jurisdictional, w e conclude that § 2401(a) isn’ t jurisdictional. To our knowledge , the only circuit that has con sidered this issue since Kwai Fun Wong— the Sixth—reached the same conclusion. See Herr , 803 F.3d at 812. And although the D.C. C ircuit held otherwise in Spannaus v. United States Department of Justice , 824 F.2d 52, 55 (D.C. Cir. 1987), it has questioned that holding in light of the Court’s recent campaign against erroneo us jurisdictional restrictions. See Mendoza , 754 F.3d at 1018 n.11. We now follow the Sixth Circuit’s extensive and persuasive analysi s and hold that § 2401(a)’s sta tute of limitations isn’t a jurisdictional requirement. See generally Herr , 803 F.3d at 813–18. Thus, the district court erred when it dism issed Chance’s co mplaint for l ack of subject-matter jurisdiction on timeliness grounds. Accordingly, we reverse the por tion of the district court’s or der dismissing Chance’s claims against the govern ment for lack of subject-matt er jurisdiction. In the interest of judicial economy, h owever, we nevertheless evaluate the district court’s alternative conclusion that Ch ance is not entitled to equitable tolling. 5 Cf. Odom v. Penske Truck Leasing Co. , 893 F.3d 739, 742 (10th Ci r. 2018) (remanding appeal

simply note that if Congress me ant to clearly indicate that two sections of the same statute must be interpreted id entically, it presumably would ha ve given them identical language. 5 Because we conclude that the di strict court had subject-matterjurisdiction, Chance’s argument that the distr ict court should have granted h im jurisdictional discovery is moot.17 from dismissal for lack of subj ect-matter jurisdiction for furt her findings and clarifying, “for the benefit of r emand,” that issue isn’t juris dictional). B. Equitable Tolling Although the district court err oneously concluded that § 2401(a ) is jurisdictional and thus isn’t subject to equi table tolling, 6 it alternatively concluded that Chance isn’t entitled to e quitable tolling on the facts of this case. In ruling on this issue, the d istrict court went beyo nd the face of Chance’s complaint to make findings of jurisdictional fact. 7 Because we conclude that th is isn’t a jurisdictional issue, we examine whether the di strict court could have reached the same conclusion looking only to the face of Chance’s complaint. See Smith , 561 F.3d at 1098. Although timeliness is an affirmative defense, see Fed. R. Civ. P. 8(c)(1), “[i]f the allegations . . . show that rel ief is barred by the applica ble statute of limitations, the complaint is subject to dismi ssal for failure to state a cl aim.” Jones v. Bock , 549 U.S. 199, 215 (2007). Chance argue s that he’s entitled to equit able tolling because he

6 Having concluded that § 2401(a) i sn’t jurisdictional, we assum e without deciding that it may be tolled. See Kwai Fun Wong , 135 S. Ct. at 1631 n.2 (clarifying that not every nonjurisdictional statute of limitations is subj ect to equitable tolling). We don’t need to answer this que stion because we conclude that even if § 2401(a) can be tolled, Chance is not en titled to tolling in this case. 7 We observe that the district c ourt had no reason to make factu al findings on this issue. True, district cour ts may generally make findings w hen ruling on a motion to dismiss for lack of subj ect-matter jurisdiction. See Holt v. United States , 46 F.3d 1000, 1003 (10th Cir. 1995). But t o the extent the district cou rt concluded that § 2401(a) is jurisdictional, it couldn’t apply equitable tollin g regardless of the facts. See Kwai Fun Wong , 135 S. Ct. at 1631. And to the extent it s ought to evaluate in the alternative whether Chance could state a claim for relief underRule 12(b)(6), it should have relied only on the al legations in Chance’s complain t. See Smith v. United States , 561 F.3d 1090, 1098 (1 0th Cir. 2009).18 alleged that (1) the governmentdidn’t notify his predecessors- in-interest when it approved the lease and permits; and (2) the government actively concealed the fact that it didn’t conduct site-speci fic environmental-impact asses sments. We conclude that these allegations, even if p roved, don’t warrant tolling t he limitations period. “Equitable tolling is granted sparingly.” Impact Energy Res., LLC v. Salazar , 693 F.3d 1239, 1246 ( 10th Cir. 2012). And whether to grant equi table tolling is a discretionary matter for the district court. Id. According to “long-settled equitabletolling principles[,] ‘[g]enera lly, a litigant seeking equitabl e tolling bears the burden of establishing two elements: (1) that he has been pursu ing his rights diligently , and (2) that some extraordinary ci rcumstances stood in his way.’” Credit Suisse Sec. (USA) LLC v. Simmonds , 566 U.S. 221, 227 (2012) (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005)). Chance—at most—only alleges the latter of these requirements. H e fails to point to a single action that he took to pursue his rights befo re filing this lawsuit. That the government didn’t notif y Chance’s predecessors-in-inte rest about the new drilling permits it appr oved and concealed its failure to condu ct an environmentalimpact assessment might have u ltimately prevented Chance from f iling a timely lawsuit. But as we explain, the se wrongs didn’t prevent Chance from making an attempt to pursue his rights. In his complaint, Chance alleges that that the Osage County Cat tlemen’s Association attempted to probe the Osage Agency’s NEPA complian ce through a Freedom of Information Act (FOIA) request. See 5 U.S.C. § 552. A nd he maintains19 that the Osage Agency resisted t he request by assessing unreaso nable processing fees. The implication, it seems , is that Chance could not have successfully discovered the Osage Agency’s NEPA viola tions. But again, the fact that th e Cattlemen’s Association may have been impeded in completing a FOIA request has nothing to do with whether Chance acted to pursue his rights. Chance is not the Cattlemen’s Association, and his allegations about its efforts only serve t o highlight the flaw in his own position: the Cattlemen’ s Association acted to pursue i ts rights; Chance did

not. Nor are we convinced that the gove rnment’s alleged misconduct s omehow excuses Chance from his duty to pursue his rights. Chance argue s that the government “lulled [him] into inaction” by actively concealing its NEPA violations. Aplt. Br. 20. We’ve “held that th e limitations period may be to lled where a claimant has been ‘actively misled.’” Biester v. Midwest Health Servs., Inc. , 77 F.3d 1264, 1268 (10th Cir. 1996) (quoting Wilkerson v. Siegfried Ins. Agency, Inc. , 683 F.2d 344, 348 (10th Cir. 1982)). But even assuming the government “a ctively misled” Chance about its NEPA compliance, that doesn’t excuse his lack of diligence. Id. (quoting Wilkerson , 683 F.2d at 348); see also Richardson v. Frank , 975 F.2d 1433, 1437 (10th Cir. 1991) (remanding fo r trial about whether plaint iff “was misled [about limitations period] and lulled into inaction despite his due diligence ” (emphasis added)); Martinez v. Orr , 738 F.2d 1107, 1112 (10th Cir. 1984) (tolling limitations period because plainti ff “acted with utmost diligence[] pursuin g his claim” but EEOC “misled and lulled [p laintiff] into inacti on” by indicating tha t he had 30 days after20 EEOC’s denial of reconsideration to file lawsuit); Donovan v. Hahner, Foreman & Harness, Inc. , 736 F.2d 1421, 1427–28 (10th Ci r. 1984) (tolling OSHA’s statu te of limitations for retaliatory-disch arge claim because employer co ncealed fact that plaintiff was discharged as oppose d to laid off and plaintiff “ made an effort to discover his true emp loyment status”). Chance essentially argues that the limitations period must be t olled because— through no efforts of his own—he discovered a legal basis to vo id GSE’s lease and permits more than 20 years afte r GSE began operating on his pro perty. We cannot agree. Therefore, although we rev erse the portion of the distri ct court’s order dismissing Chance’s claims again st the government for lack of s ubject-matter jurisdiction, we agree with the d istrict court’s conclusion tha t those claims are untimely. Accordingly, we remand to the district court with ins tructions to dismiss for failure to state a claim. 8 II. Chance’s Claims Against GSE We now briefly turn to Chance’s claims against GSE. The distric t court dismissed these claims for failure to state a claim because it held that they are dependent on Chance’s claims again st the government, which fail . Alternatively, the district court said it would exer cise its discretion to decline supplemental jurisdiction over Chance’s claims against GSE.

8 Because we conclude that Chance’ s claims are untimely, we don’ t reach the government’s alternati ve argument that Chan ce failed to exhausthis administrative remedies.21 We see no reason to address the merits of these claims. The dis trict court’s alternative ruling was well within its prerogative. See 28 U.S.C. § 1367(c)(3) (allowing district court to declin e to exercise supplemental ju risdiction over state-law claims when it has dismissed all claims within its original jur isdiction); City of Chicago v. Int’l Coll. of Surgeons , 522 U.S. 156, 172 (19 97) (emphasizing that district courts have significant discretion to decline suppleme ntal jurisdiction). Accordingly, we affirm this porti on of the district court’s ord er. Conclusion We reverse in part and affirm i n part. We reverse the portion o f the district court’s order dismissing Chance’s claims against the governmentfor lack of subjectmatter jurisdiction and remand w ith instructions to dismiss forfailure to state a claim. But we affirm the distric t court’s order dismissing Chan ce’s claims against GSE for lack of subject-matter jurisdiction. As a final matter, we deny the government’s motion to strik e portions of amici’s brief.