                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                            FOR THE TENTH CIRCUIT                          August 5, 2020
                        _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 AMERICAN PETROLEUM INSTITUTE,

       Petitioner - Appellant,

 v.                                                           No. 18-8070
                                                     (D.C. No. 2:17-CV-00083-NDF)
 UNITED STATES DEPARTMENT OF                                    (D. Wyo.)
 THE INTERIOR; DAVID
 BERNHARDT,1 in his official capacity as
 Secretary of the United States Department
 of the Interior; OFFICE OF NATURAL
 RESOURCES REVENUE; KIMBRA
 DAVIS,2 in her official capacity as
 Director of the Office of Natural Resources
 Revenue,

       Respondents - Appellees.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BACHARACH, MCHUGH, and EID, Circuit Judges.
                 _________________________________

       In 2016, the Office of Natural Resources Revenue (“ONRR”) promulgated a final

rule to amend the civil penalty regulations under the Federal Oil and Gas Royalty


       1
         Pursuant to Federal Rule of Appellate Procedure 43, Secretary of the Interior
David Bernhardt was substituted for former Secretary of the Interior Ryan Zinke.
       2
         Pursuant to Federal Rule of Appellate Procedure 43, Director of the Office of
Natural Resources Revenue Kimbra Davis was substituted for former Director Gregory
Gould.
       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Management Act (“FOGRMA”). Believing that ONRR’s rule exceeded its statutory

authority under FOGRMA, American Petroleum Institute (“API”) filed a petition for

review in district court, requesting that the rule be vacated.3 The district court vacated

one challenged provision but rejected API’s challenges to several other provisions. On

appeal, API contends that the district court erred by rejecting its challenge to four of

those provisions. We hold that API lacks standing to challenge ONRR’s 2016 rule.

Accordingly, we vacate the district court’s decision and remand for dismissal of API’s

petition for lack of jurisdiction.

                                             I.

       The United States Department of the Interior (“DOI”) offers leases to private

entities to develop oil and gas reserves on public lands. When DOI issues a lease, the

federal government retains a royalty interest based on the value of the oil or gas produced

by the lessee. To ensure that lessees accurately report and pay the value of their oil and

gas royalties under their respective leases, DOI relies on ONRR. ONRR sets the amount

of royalty payments based on reports that must be submitted regularly by the lessees.

       Before 1982, there were concerns that the federal government’s regulatory system

did not adequately ensure that lessees accurately reported the value of their oil and gas

production. To address this perceived problem, Congress passed FOGRMA.




       3
          API is a national trade association suing on behalf of its members who are
entities involved in various aspects of the oil and natural gas industry.

                                              2
       FOGRMA established four levels of civil penalties for those who violated its

provisions. 30 U.S.C. § 1719(a)–(d). The lowest tier, § 1719(a), authorizes penalties for

violations of any provision of FOGRMA, any mineral leasing law, or the terms of any

lease or permit. Under this section, lessees are given twenty days to cure violations after

either self-reporting or receiving a formal Notice of Noncompliance.4 After twenty days,

§ 1719(a) imposes penalties of up to $500 for each day that a violation continues. If the

violation continues beyond forty days, then the next tier of liability, § 1719(b), imposes

penalties of up to $5,000 per day.

       The two highest levels of civil penalties punish violations that are committed

“knowingly or willfully.” Id. at § 1719(c)–(d). These levels of liability impose higher

penalties without allowing any opportunity to cure. Section 1719(c) imposes fines of up

to $10,000 per day for certain enumerated violations, and § 1719(d) imposes fines of up

to $25,000 per day for the most serious offenses—including “knowingly or willfully. . .

maintain[ing] . . . false, inaccurate, or misleading reports . . . .” Additionally, § 1720

authorizes criminal penalties for violations of § 1719(d).

       In 2016, ONRR promulgated a final rule amending FOGRMA’s civil penalty

regulations. Relevant to API’s appeal, the 2016 rule defined “knowingly or willfully” as

well as “maintains false, inaccurate, or misleading information.” 30 C.F.R. § 1241.3(b).

The rule also clarified what types of evidence can be used to prove a knowing or willful


       4
         A formal Notice of Noncompliance “identifies a violation, specifies the
corrective action that must be taken, and establishes the deadline for such action to avoid
a civil penalty.” 30 C.F.R. § 1241.3(b).
                                               3
violation, id. at § 1241.60(c), and how ONRR will determine the amount of a civil

penalty, id. at § 1241.70(a)–(b).

       Believing that ONRR’s rule exceeded its statutory authority under FOGRMA, API

filed a petition for review in district court on behalf of its members. The district court

concluded that API had standing to challenge ONRR’s 2016 amendments to FOGRMA

based on API’s assertion that its members may be subjected to higher penalties without a

formal Notice of Noncompliance. Am. Petroleum Inst. v. U.S. Dep’t of the Interior, 366

F. Supp. 3d 1292, 1299–1300 (D. Wyo. 2018). After reaching the merits, however, the

district court rejected API’s challenge to several of ONRR’s amendments. See id. at

1302–11. API timely appealed the district court’s rejection of API’s challenge to four of

those amendments.5

                                             II.

       “Because standing is a question of law for the court to determine, we review the

district court’s determination of standing de novo.” Comm. to Save the Rio Hondo v.

Lucero, 102 F.3d 445, 447 (10th Cir. 1996).




       5
         API appealed the district court’s rulings related to (1) 30 C.F.R. § 1241.3(b)’s
definition of “knowingly or willfully,” (2) the evidence that may be used to show a
“knowing or willful” violation, (3) § 1241.3(b)’s definition of “maintains,” and (4) the
constitutionality of § 1241.70(b)’s refusal to consider royalty impacts. See id. API did
not appeal the district court’s rejection of API’s challenges to (1) the definition of
“submits” in 30 C.F.R. § 1241.3(b), (2) § 1241.60(c), (3) § 1241.60(b)(1)(ii), and (4) the
rule generally. API did succeed on one claim, causing the district court to vacate
§ 1241.11(b). ONRR has not filed a cross-appeal challenging that ruling. See id.
                                              4
       “Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’

and ‘Controversies.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014).

“One element of the case-or-controversy requirement is that plaintiffs must establish that

they have standing to sue.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013)

(quotations omitted). To establish standing, a plaintiff must show three things: (1) injury

in fact, (2) causation, and (3) redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555,

560–61 (1992). An organization has standing to sue on behalf of its members when the

organization’s members would otherwise have standing in their own right, the interests at

stake are germane to the organization’s purpose, and the participation of the individual

members in the lawsuit is not required. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 181 (2000). The plaintiff bears the burden of establishing

standing. Lujan, 504 U.S. at 561.

       This case primarily concerns the injury-in-fact requirement. “To establish injury

in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected

interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or

hypothetical.’” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). Injury in fact may

still exist where an individual is subject to only the threatened enforcement of a law as

long as the circumstances “render the threatened enforcement sufficiently imminent.”

Driehaus, 573 U.S. at 158–59 (citing MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,

129 (2007) (“[W]e do not require a plaintiff to expose himself to liability before bringing

suit to challenge the basis for the threat.”)). Pre-enforcement review is thus permitted


                                              5
where the plaintiff alleges (1) “an intention to engage in a course of conduct arguably

affected with a constitutional interest, but proscribed by” the challenged law, and (2)

“there exists a credible threat of prosecution thereunder.” Driehaus, 573 U.S. at 159.6

                                            III.

       API lacks standing to challenge ONRR’s 2016 amendments to FOGRMA because

it has not demonstrated a sufficiently imminent threat of injury. First, API has failed to

allege or provide evidence that any of its members are currently subject to any

disciplinary action under FOGRMA as a result of ONRR’s 2016 amendments. Second,

API has failed to allege or provide evidence of any intention, on the part of its members,

to engage in a course of conduct that could violate FOGRMA. Indeed, at oral argument,

API admitted that its members “don’t intend to violate any rule.” Oral Argument at

3:18–24.

       Still, API claims that it has standing because ONRR’s 2016 rule may subject

API’s members to “much higher penalty liability without a [formal Notice of

Noncompliance].” Reply Br. at 5. According to API, this will force its members to


       6
         API appears to argue that the Driehaus rule applies only to suits challenging
statutes and not those challenging regulations, but there is no basis for this distinction.
Although the quoted language from Driehaus refers to conduct “proscribed by a statute,”
the opinion discusses pre-enforcement review of laws generally. Driehaus, 573 U.S. at
158–59. Recognizing this, multiple circuits have extended Driehaus to pre-enforcement
suits against regulations. See, e.g., U.S. Telecom Ass’n v. Fed. Commc’ns Comm’n, 825
F.3d 674, 740 (D.C. Cir. 2016) (altering Driehaus quote to “proscribed by [regulation]”
and applying the rule in a regulatory context); Kiser v. Reitz, 765 F.3d 601, 608 (6th Cir.
2014).

                                             6
decide “whether to comply with even informal ONRR communications regarding

purported reporting errors.” Id. at 4. But API has not asserted that its members intend to

engage in a course of conduct that would result in its noncompliance with informal

ONRR communications. Thus, API’s claims amount to merely a “possib[ility of] future

injury,” which is insufficient to constitute an injury in fact. Clapper, 568 U.S. at 409;

Driehaus, 573 U.S. at 158 (“An allegation of future injury may suffice if the threatened

injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.”).

       Furthermore, our conclusion that API lacks standing is not contradicted by API’s

assertion that violations of § 1719(c) and (d) will result in “swift and sure penalty

imposition.” Reply Br. at 5 (quoting Am. Petroleum Inst., 366 F. Supp. 3d at 1299–

1300). While this may show that “there exists a credible threat of prosecution” under the

challenged law, it fails to show “an intention to engage in a course of conduct arguably

affected with a constitutional interest, but proscribed by” that challenged law. Driehaus,

573 U.S. at 159. Accordingly, because API has not demonstrated a sufficiently imminent

threat of injury, API lacks standing to challenge ONRR’s 2016 amendments to

FOGRMA.

                                             IV.

       API has failed to show that it has standing to challenge ONRR’s 2016

amendments to FOGRMA. We therefore VACATE the district court’s decision and




                                               7
REMAND for dismissal of API’s petition for lack of jurisdiction.


                                            Entered for the Court


                                            Allison H. Eid
                                            Circuit Judge




                                           8
