ELR Citation: ELR 21149
No(s). 95-40770 (5th Cir. May 23, 1997)

The court holds that it lacks jurisdiction over plaintiff mineral developers' challenge to regulations concerning mineral development on National Park Service land. The regulations require, among other things, that mineral developers submit plans of operations to the Park Service before extracting subsurface minerals. The court first holds that the challenge is governed by the general statute-of-limitations provision of 28 U.S.C. §2401(a), and that failure to sue the United States within the limitations period deprives federal courts of jurisdiction. The court holds that §2401(a) bars the developer's facial challenge to the regulations because the developer failed to mount the challenge within six years of the regulations' publication. The court next notes that an agency's application of a rule to a party creates a new, six-year cause of action to challenge the agency's constitutional or statutory authority. But the developer has failed to show such an application of the regulations here. The court next holds that the developer may not challenge the regulations "as applied," because the Park Service has never applied the regulations to the developer. Finally, the court holds that it does not have jurisdiction under the Mandamus Act, because the developer has not demonstrated that a government officer owes it a legal duty that is a specific, ministerial act, devoid of the exercise of judgment or discretion.

[Briefs in this litigation are digested at ELR BRIEFS & PLEADS. 66477.]

Counsel for Plaintiffs
Charles W. Gordon IV
Porter, Rogers, Dahlman & Gordon
One Shoreline Plaza, Ste. 800, Corpus Christi TX 78401
(512) 880-5808

Counsel for Defendants
John T. Stahr
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before JONES, DUHE, and EMILIO M. GARZA, Circuit Judges.