                                                                  FILED
                                                      United States Court of Appeals
                                                              Tenth Circuit
                                 PUBLISH
                                                          September 5, 2012
                    UNITED STATES COURT OF APPEALS
                                                         Elisabeth A. Shumaker
                                                             Clerk of Court
                               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      Nos. 11-4043 & 11-4057
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
 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-Intervenors-
Appellees.

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.


                                            -2-
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

                                             -3-
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

                                             -4-
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

                                             -5-
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
                                             -6-
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
                                              -7-
       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,
                                            -8-
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

                                            -9-
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.”

                                             -10-
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.


                                            -11-
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.


                                              -12-
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”).


                                              -13-
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.

                                             -14-
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

                                            -15-
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
                                            -16-
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

                                            -17-
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.




                                           -18-
