235 F.3d 588 (D.C. Cir. 2001)
Independent Petroleum Association of America, et al., Appellantsv.Bruce Babbitt, Secretary of the Interior, et al., Appellees
No. 98-5131
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 1, 2000Decided January 5, 2001

[Copyrighted Material Omitted]
Appeal from the United States District Court  for the District of Columbia (No. 93cv02544)L. Poe Leggette argued the cause for appellants.  With him  on the briefs were Laura S. Morton and Stephen M.  McNabb.  E. Edward Bruce, Nancy L. Pell and Thad S.  Huffman entered appearances.
Ronald M. Spritzer, Attorney, U.S. Department of Justice,  argued the cause for appellees. With him on the brief were James F. Simon, Acting Assistant Attorney General, and  Sean H. Donahue, Attorney.
Before:  Sentelle, Randolph and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge:


1
In the consolidated cases of  Independent Petroleum Association of America v. Babbitt  and Samedan Oil Corp. v. Deer, 92 F.3d 1248 (D.C. Cir.  1996), we held that (1) a policy letter written by an Associate  Director of the Minerals Management Service clarifying the  royalty consequences of take-or-pay settlement payments was  not a rule subject to the notice-and-comment requirements of  the Administrative Procedure Act;  and (2) the decision of an  Assistant Secretary of the Department of the Interior in  Samedan Oil Corp., MMS-94-0003-IND (Sept. 16, 1994), was  arbitrary and capricious.  On remand, the District Court  granted in part Samedan Oil Corporation's ("Samedan") motions for entry of an order implementing the mandate of this  Court and for injunctive relief, Independent Petroleum Ass'n  of Am. v. Babbitt, 971 F. Supp. 19, 35-36 (D.D.C. 1997), but  denied a similar motion made by the Independent Petroleum  Association of America ("IPAA"), see id. at 30, 35.  The  District Court concluded that IPAA was not a party to  Samedan's case and that IPAA's remaining claim--a "general  challenge to the authority of [the Department of the Interior]  to charge" royalties on nonrecoupable take-or-pay settlement  payments--did not challenge final agency action.  Id. at 26. Accordingly, the District Court held that it lacked jurisdiction  over IPAA's claim and therefore dismissed its complaint. IPAA now returns to this Court asking us to reverse the  lower court's decision.  For the reasons set forth below, we  affirm.

I. BACKGROUND

2
The instant appeal continues a long history of litigation  focusing on whether the Department of the Interior ("DOI")  should be permitted to collect royalties from gas-producing  companies that lease land from DOI when those companies receive payments based on their take-or-pay settlement  agreements with gas pipelines.1  DOI initially took the position that under its gross proceeds rule, see 30 C.F.R.  §§ 206.151, .152(h), .153(h) (1987), gas producers owed royalties for receiving such payments.  In 1988, the Fifth Circuit  rejected this position, holding that "[r]oyalty payments are  due only on the value of minerals actually produced, i.e.,  physically severed from the ground.  No royalty is due on  take-or-pay payments unless and until gas is actually produced and taken."  Diamond Shamrock Exploration Co. v.  Hodel, 853 F.2d 1159, 1168 (5th Cir. 1988).  DOI subsequently  amended the gross proceeds rule to reflect this holding,  "remov[ing] the requirement to pay royalties on take-or-pay  payments at the time the payment is made" but continuing to  require royalties "when make-up gas is taken."  Revision of  Gross Proceeds Definition in Oil and Gas Valuation Regulations, 53 Fed. Reg. 45,082, 45,083 (Nov. 8, 1988).  In a May 3,  1993 letter, the Associate Director of DOI's Minerals Management Service ("MMS") sought to clarify the gross proceeds rule, stating that "some or all of a settlement payment  is or will become royalty bearing if production towhich  specific money is attributable occurs."  Letter from James W.  Shaw, Associate Director for Royalty Management, MMS,  addressed to "Payor" (May 3, 1993) [hereinafter May 1993  letter].  In other words, according to the letter, "the only  relevant question is whether or not the gas which was originally spoken for in the settled contracts is eventually sold to  someone."  Independent Petroleum Ass'n of Am. v. Babbitt  ("IPAA I"), 92 F.3d 1248, 1253 (D.C. Cir. 1996) (emphasis in  original).


3
In August 1993, the Independent Petroleum Association of  America, an association of roughly 5,000 independent explorers and producers of natural gas and oil, responded to the  letter by filing a suit seeking injunctive relief to prevent DOI from collecting royalties on unrecoupable take-or-pay settlement payments.  IPAA's complaint argued, inter alia, that  (1) DOI adopted a new rule through the May 1993 letter  without following the notice-and-comment procedures required by the Administrative Procedure Act ("APA"), 5  U.S.C. § 553, and (2) DOI's efforts to collect royalties based  on the settlement agreements violated the statutes governing  the royalties owed under DOI leases.  In 1994, in an effort to  "simplify ...  some of the procedural aspects of [ ] the IPAA  Litigation," DOI and IPAA entered an agreement whereby  MMS would issue up to 10 orders to companies to pay  royalties based on their settlement agreements.  Agreement,  Independent Petroleum Ass'n of Am. v. Babbitt, No. 93-2544  (D.D.C. Feb. 4, 1994).  The companies could then appeal  these orders to an Assistant Secretary of DOI, who would  issue decisions that could become "appropriate vehicles to  seek judicial review on the merits of the May [1993] Letter." Id. at 5.


4
Later that year, MMS issued an order to Samedan Oil  Corporation requiring it to pay royalties on settlement payments made by Southern Natural Gas Company.  Samedan  appealed the order to DOI's Assistant Secretary for Indian  Affairs.  The Assistant Secretary upheld the order based on  the policies articulated in the May 1993 letter.  See Samedan  Oil Corp., MMS-94-0003-IND (Sept. 16, 1994).  Samedan  appealed to the District Court seeking judicial review of the  Assistant Secretary's decision.  Then, as we explained in  IPAA I, "the District Court consolidated Samedan's challenge  with IPAA's challenge to the May 1993 letter."  IPAA I, 92  F.3d at 1255.  After the District Court granted summary  judgment for DOI in both cases, Samedan and IPAA appealed to this Court.


5
On appeal, we reversed the District Court's granting of  summary judgment, holding that (1) the May 1993 letter was  not a "rulemaking requiring APA notice-and-comment procedures," id. at 1256, and (2) the Assistant Secretary's Samedan decision was "arbitrary and capricious in light of DOI's  adoption of the Diamond Shamrock holding," id. at 1260. Accordingly, we held that DOI was precluded from collecting  royalty payments from Samedan.  See id.


6
On remand, IPAA and Samedan filed motions with the  District Court seeking an order implementing the "mandate  of the court of appeals" and a permanent injunction against  DOI from collecting royalties from Samedan.  Independent  Petroleum Ass'n of Am. v. Babbitt, 971 F. Supp. 19, 23  (D.D.C. 1997).  The District Court granted Samedan's motion  for injunctive relief, see id. at 36, and denied IPAA's motion  to implement this Court's mandate, see id. at 30, 35.  In  denying IPAA's motion, the District Court ruled that our  decision in IPAA I only addressed IPAA's claim concerning  MMS's May 1993 letter, not its "wide-ranging" complaint  concerning DOI's efforts to collect royalties based on take-orpay settlement agreements.  See id. at 26.  The District  Court explained that our holding concerning the Assistant  Secretary's Samedan decision extended only to Samedan, not  to IPAA.  Noting that IPAA had not sought to join Samedan's case, the District Court reasonedthat IPAA could not  "be considered a true party to Samedan's case, but must  stand or fall on its own."  Id.  Consistent with this reasoning,  the District Court reviewed whether it had jurisdiction to  hear IPAA's broad challenge to DOI's royalty policy.  Although recognizing that further administrative review would  be futile in light of DOI's insistence that it would continue to  apply the policies underlying the May 1993 letter, the Court  ultimately ruled that it lacked jurisdiction because IPAA does  "not face any final actions which [it] may challenge."  Id. at  30.  Accordingly, the District Court dismissed IPAA's claim. IPAA appeals from this ruling.

II. ANALYSIS

7
DOI contends that the issues raised by IPAA are not  properly before this Court.  Following the District Court's  dismissal of its claim, IPAA filed a motion pursuant to Rule  59(e) of the Federal Rules of Civil Procedure asking the  District Court to amend its judgment, arguing that "nothing  in the law of the D.C. Circuit conflicts" with adopting a futility exception to the finality requirement.  Independent  Petroleum Ass'n of Am. v. Babbitt, 178 F.R.D. 323, 324  (D.D.C. 1998) (mem.).  IPAA suggested that in its case  "futility should create finality and subject matter jurisdiction."  Id.  The District Court denied this motion, concluding  that our Circuit has constrained the futility exception to the  requirement of exhausting administrative remedies before  seeking judicial review.  See id. at 324-25.  The Court noted  that IPAA's argument "conflate[d] the doctrines of finality  and exhaustion," id. at 324, and held that "futility cannot  create agency action for purposes of jurisdiction," id. at 326.


8
IPAA's Notice of Appeal states that IPAA appeals from the  District Court's order "denying plaintiffs' motion to alter or  amend the judgment dismissing the complaint."  DOI points  out that the arguments IPAA makes on appeal deal solely  with the District Court's dismissal of its complaint, not its  Rule 59(e) motion.  Because IPAA's Notice of Appeal refers  only to the District Court's denial of this motion without  referencing the dismissal of its complaint, DOI suggests that,  in light of Rule 3(c) of the Federal Rules of Appellate  Procedure, IPAA's arguments concerning the dismissal of its  claim are not properly before us.


9
Under Rule 3(c), a notice of appeal must "designate the  judgment, order, or part thereof being appealed."  Fed. R.  App. P. 3(c)(1)(B).  Nevertheless, a party's failure to designate  the proper order it intends to appeal is "not necessarily fatal." Martin v. FERC, 199 F.3d 1370, 1372 (D.C. Cir. 2000).  As  we have explained, "a party may demonstrate its intention to  appeal from one order despite referring only to a different  order in its petition for review if the petitioner's intent can be  fairly inferred from the petition or documents filed more or  less contemporaneously with it."  Id. (internal quotes omitted).  Furthermore, without a showing of prejudice by the  appellee, technical errors in the notice of appeal are considered harmless.  See McLaurin v. Fischer, 768 F.2d 98, 102  (6th Cir. 1985) (citing Foman v. Davis, 371 U.S. 178, 181  (1962)).


10
We conclude that the arguments raised by IPAA concerning the District Court's dismissal of its complaint are properly  before us.  IPAA's intention to appeal from the actual dismissal is clear.  In the Non-Binding Statement of Issues to  be Raised, IPAA explicitly stated one issue as "[w]hether ...  the district court erred in dismissing appellants' complaint  with prejudice on the grounds that they had not complained  of 'final' agency action within the meaning of 5 U.S.C. § 704." J.A. at 300.  It is also worth underscoring that DOI does not  claim that it was prejudiced by IPAA's referring to the wrong  order in its Notice of Appeal.  See Martin, 199 F.3d at 1373  (noting that appellee did not "claim to suffer any prejudice"). Not onlydid DOI fully brief the merits of the District Court's  dismissal of IPAA's claim, but its earlier filings demonstrate  that it understood the true nature of IPAA's appeal.  For  example, in one responsive document it noted that one issue  before the Court is "the import of this Court's decision in  IPAA v. Babbitt and whether injunctive relief is appropriate." Federal-Appellees' Consolidated Response to Appellants' Response to Order to Show Cause at 5, Shell Offshore, Inc. v.  Department of the Interior, No. 98-5116 (D.C. Cir. 2000)2;  cf.  Foman, 371 U.S. at 181 ("[B]oth parties brief[ed] and argue[d] the merits of the earlier judgment on appeal...."); Martin, 199 F.3d at 1373 (FERC's responses "indicate that  the agency was aware from the outset that [petitioner] meant  to seek review of the Certificate Order.").  We therefore  proceed to consider the substance of IPAA's contention that  the District Court erred in dismissing its complaint for failing  to challenge final agency action.


11
IPAA argues that its claim originally included a challenge  to the Samedan decision and that in IPAA I we reversed the  District Court's order granting summary judgment against  IPAA in its challenge to Samedan.  IPAA suggests the  District Court ignored this mandate by refusing to enter a judgment in its favor and subsequently dismissing its complaint.  According to IPAA, by reopening questions already  determined in earlier phases of this litigation, the District  Court violated the mandate rule.  Further, IPAA contends  that the Samedan decision constitutes a final agency action  that provides the basis for a justiciable claim.  In response to  IPAA's arguments, DOI submits that (1) IPAA's complaint  did not challenge final agency action;  (2) IPAA does not have  standing to challenge the Samedan decision;  and (3) IPAA's  claim is not ripe for review.


12
As we have explained before, "we have no difficulty dismissing a case based on one jurisdictional bar rather than  another."  Louisiana Envtl. Action Network v. Browner, 87  F.3d 1379, 1384 (D.C. Cir. 1996).  We therefore need not  identify every ground for holding that a claim is not justiciable.  See id. at 1385.  We conclude that the District Court  properly dismissed IPAA's complaint because of the lack of  final agency action.  Cf. Public Citizen v. Office of the U.S.  Trade Representatives, 970 F.2d 916, 918 (D.C. Cir. 1992)  (explaining that the absence of a final agency action "removes  any need for considering the government's other jurisdictional argument").


13
Section 704 of the Administrative Procedure Act, 5 U.S.C.  § 704, provides for judicial review of final agency action--that  is, for a court to have jurisdiction over a case brought  pursuant to § 704, the complaint must challenge a final action  of an agency.  See Public Citizen, 970 F.2d at 918.  As we  stated in DRG Funding Corp. v. Secretary of Housing &  Urban Development, 76 F.3d 1212 (D.C. Cir. 1996), "[t]he  requirement of a final agency action has been considered  jurisdictional.  If the agency action is not final, the court  therefore cannot reach the merits of the dispute."  Id. at 1214  (citation omitted).  The APA defines agency action to include  "the whole or a part of an agency rule, order, license,  sanction, relief, or the equivalent or denial thereof, or failure  to act."  5 U.S.C. § 551(13).  In determining whether such  action is final, we consider "whether the agency's position is  'definitive' and whether it has a 'direct and immediate ...  effect on the day-to-day business' of the parties."  Ciba-Geigy Corp. v. United States Envtl. Protection Agency, 801 F.2d  430, 436 (D.C. Cir. 1986) (quoting Federal Trade Comm'n v.  Standard Oil Corp. of Cal., 449 U.S. 232, 239 (1980) (internal  quotes omitted)); see also Bennett v. Spear, 520 U.S. 154, 178  (1997) (An agency action is final if it "mark[s] the consummation of the agency's decision making process" and is "one by  which rights or obligations have been determined, or from  which legal consequences will flow." (citations and internal  quotes omitted)).


14
IPAA's complaint not only does not challenge final agency  action, it is not at all clear what agency action IPAA purports  to challenge.  The complaint states that IPAA challenges  DOI's "efforts to collect" royalties on take-or-pay settlement  payments.  What those "efforts" entail is less than clear. What is clear, however, is that these "efforts" are not final  agency actions fit for judicial review.


15
At best, IPAA's characterization of DOI's "efforts" seems  analogous to the National Wildlife Federation's ("NWF")  attempt to challenge the Bureau of Land Management's  ("BLM") "land withdrawal review program" in Lujan v.  National Wildlife Federation, 497 U.S. 871 (1990).  NWF  used the term "program" to describe BLM's activities in  complying with the Federal Land Management Policy Act of  1976, 43 U.S.C. § 1701 et seq.  The Lujan Court explained  that "[t]he term 'land withdrawal review program' ... does  not refer to a single BLM order or regulation, or even to a  completed universe of particular BLM orders and regulations."  Lujan, 497 U.S. at 890.  Accordingly, the Court  concluded that the program was not "an identifiable action,"  id. at 899, and therefore held that NWF's claim could not be  reviewed under the APA.  See id. 892-93.  Like the "program" in Lujan, the "efforts" that IPAA seeks to challenge  do not refer to any particular action taken by DOI, much less  to any particular order, regulation, or completed universe of  orders or regulations.  Cf. Sierra Club v. Peterson, 228 F.3d  559, 566 (5th Cir. 2000) (en banc) ("This is not a justiciable  challenge because the program of timber management to  which the environmental groups object does not mark the  consummation of the agency's decision making process ... or


16
constitute an identifiable action or event." (internal citations  and quotations omitted));  Foundation on Econ. Trends v.  Lyng, 943 F.2d 79, 86-87 (D.C. Cir. 1991) (holding that a  plaintiff's complaint concerning the Department of Agriculture's "germplasm preservation program" did not challenge  agency action under the APA).  Instead, IPAA seeks to  litigate the type of "generic challenge" the Lujan Court  refused to hear.  Lujan, 497 U.S. at 891 n.2.


17
IPAA itself seemed to recognize this shortcoming when it  entered an agreement with DOI to "simplify ... some of the  procedural aspects of [ ] the IPAA Litigation."  Agreement,  Independent Petroleum Ass'n of Am. v. Babbitt, No. 93-2544  (D.D.C. Feb. 4, 1994).  That agreement recognized that MMS  would issue up to 10 orders to companies to pay royalties  based on their settlement agreements.  The companies could  then appeal these orders to an Assistant Secretary of DOI  who would issue decisions that could become "appropriate  vehicles to seek judicial review"--that is, those orders would  provide the foundation for justiciable test cases.  Id. at 5.  Of  course, the order issued to Samedan provided the basis for  one of those cases.  See Independent Petroleum Ass'n of  Am., 971 F. Supp. at 24.


18
Now IPAA claims that it is challenging DOI's Samedan  decision.  That decision, however, is never mentioned in  IPAA's complaint.  Indeed, DOI issued the Samedan decision  over a year after IPAA filed its complaint in this case.  IPAA  never amended its complaint to add a claim challenging that  decision.  Nor did IPAA seek to intervene when Samedan  appealed the Assistant Secretary's decision.  Although  IPAA's case was later consolidated with Samedan's case, the  two cases continued to be separate.  See Cella v. Togum  Constructeur Ensemleier en IndustrieAlimentaire, 173 F.3d  909, 912 (3d Cir. 1999) (noting consolidation does not merge  suits into a single case).  Simply because IPAA and Samedan  were represented by the same counsel and filed a joint brief  on appeal, their individual cases were not somehow merged  into one--they remained separate and distinct.


19
Alternatively, IPAA avers that in IPAA I the parties  litigated the Samedan decision by implied consent through  their cross-motions for summary judgment.  See Fed. R. Civ.  P. 15(b).  According to Rule 15(b), "[w]hen issues not raised  by the pleadings are tried by express or implied consent of  the parties, they shall be treated in all respects as if they had  been raised in the pleadings."  Id.  The Rule's implied consent provision is normally invoked when evidence concerning  an issue not addressed in the pleadings is introduced at trial  without objection.  See 6A Charles Alan Wright et al.,  Federal Practice and Procedure:  Civil 2d § 1493 (2d ed.  1990).  In such cases, we uphold a trial court's determination  of whether parties impliedly consented to try an issue unless  the court abused its discretion.  See Kirkland v. District of  Columbia, 70 F.3d 629, 633 (D.C. Cir. 1995).


20
It is an open question whether the Federal Rules permit  parties to impliedly consent to "try" issues not raised in their  pleadings through summary judgment motions.  In Harris v.  Secretary, U.S. Department of Veterans Affairs, 126 F.3d 339  (D.C. Cir. 1997), we wrote that "[b]ecause a case decided on  motion for summary judgment does not reach trial, ... Rule  15(b) does not apply."  Id. at 344 n.3.  Yet, in Kulkarni v.  Alexander, 662 F.2d 758 (D.C. Cir. 1978), we noted that Rule  15(b)'s "general principle has been applied to motions for  summary judgment."  Id. at 762.  We need not decide that  general question.  In this case there is no clear evidence in  the record that DOI consented to allow IPAA to challenge the  Samedan decision--certainly no proof sufficient to reverse  the District Court's ruling that IPAA did not challenge the  Samedan decision.  See Independent Petroleum Ass'n of  Am., 971 F. Supp. at 25-26.  In fact, this case's history is  sprinkled with references made by IPAA that its case is  distinct from Samedan's.  For example, in the proceedings  leading up to this Court's decision in IPAA I, IPAA distinguished between "the Association's generic challenge to  [DOI's] interpretation and enforcement of their royalty value  regulations" and "Samedan's challenge to a particular order  to pay additional royalties owed under the terms of its lease." Joint Motion for Enlargement of Page Limitations at 2, IPAA I, 92 F.3d 1248 (D.C. Cir. 1996) (No. 95-5210) (emphasis  added).  Likewise in its IPAA I brief, IPAA specifically  described two suits:  IPAA's challenge to the May 1993 letter  and "[t]he second suit ... brought by Samedan Oil Corporation ... challeng[ing] a 1994 decision of Interior Department  Assistant Secretary Deer."  Appellants' Brief at 4, IPAA I,  92 F.3d 1248 (D.C. Cir. 1996) (Nos. 95-5210 & 95-5245).  DOI  also recognized that the two cases were distinct in IPAA I, as  its brief provided separate procedural backgrounds for  IPAA's suit "challenging the propriety of the MMS Associate  Director's May 1993 letter" and Samedan's effort to seek  "judicial review of the Assistant Secretary's [Samedan] decision."  Appellee's Brief at 11, 16, IPAA I, 92 F.3d 1248 (D.C.  Cir. 1996) (Nos. 95-5210 & 95-5245).  Given this history, we  cannot possibly find that the parties impliedly consented to  litigate the Samedan decision.


21
IPAA argues that the mandate rule precludes the District  Court--and now this Court--from holding that it never challenged the Samedan decision.  Specifically, IPAA points to  language in our IPAA I decision suggesting that it had  challenged the Agency's decision.  Under the mandate rule,  "an inferior court has no power or authority to deviate from  the mandate issued by an appellate court."  Briggs v. Pennsylvania R.R. Co.,334 U.S. 304, 306 (1948).  The mandate  rule is a "more powerful version" of the law-of-the-case  doctrine, which prevents courts from reconsidering issues  that have already been decided in the same case.  LaShawn  A. v. Barry ("LaShawn II"), 87 F.3d 1389, 1393 & n.3 (D.C.  Cir. 1996) (en banc);  see also Kimberlin v. Quinlan, 199 F.3d  496, 500 (D.C. Cir. 1999) (describing the law-of-the-case doctrine).  As this Court explained in LaShawn II, this doctrine  applies to jurisdictional issues, whether those issues were  decided " 'explicitly or by necessary implication.' "  LaShawn  II, 87 F.3d at 1394 (quoting Crocker v. Piedmont Aviation,  Inc., 49 F.3d 735, 739 (D.C. Cir. 1995)).  Nevertheless, courts  are "not bound by a prior exercise of jurisdiction in a case  where it was not questioned and it was passed sub silentio." United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33,  38 (1952);  see also LaShawn II, 87 F.3d at 1395 n.6 (explaining that courts are not "bound by decisions on questions of  jurisdiction made sub silentio in previous cases 'when a  subsequent case finally brings the jurisdictional issue' to the  Court" (quoting Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 119 (1984))).


22
Although some portions of the IPAA I decision may be  read to suggest that IPAA challenged the Samedan decision,  the question of whether IPAA had challenged that decision  was not before us, nor decided by us, even by implication. Any confusion read into our earlier opinion stems from the  fact that this issue was not cleanly raised.  Now that we are  able to consider IPAA's claim standing alone, we are able to  make a precise determination concerning its content and its  justiciability.  Indeed, as explained above, its content is clear,  and it is not justiciable.  Consequently, the District Court  stood on firm ground in considering whether IPAA had  challenged final agency action and holding that it did not. Like the District Court, we do no harm to the law of this  Circuit nor the law of this case by considering this issue  today, with the question placed squarely before us uncluttered by other claims or cases.


23
In a footnote buried on the nineteenth page of its reply  brief, IPAA makes one last effort to litigate its claim, requesting leave to amend its complaint to include a challenge to the  Samedan decision.  See 28 U.S.C. § 1653.  We deny this  request.  IPAA points out that this Court granted leave to  amend following a motion made at oral argument in DKT  Memorial Fund, Ltd. v. Agency for International Development, 810 F.2d 1236, 1239 (D.C. Cir. 1987).  The unique  circumstances of DKT belie its applicability in other cases. DKT's singular holding was limited to the facts of a discrete  case dealing with international affairs.  See id. at 1238-39. In that case, leave to amend was constrained to a single  factual allegation--a factual allegation that the plaintiffs inadvertently omitted--that clarified the plaintiffs' standing in an  area where "current precedent does not conclusively indicate  whether" such a party has standing.  Id. at 1239.  The DKT  Court made plain that the appellants' omission had been inadvertent and that, based on the facts of the case, granting  leave to amend was in the public interest.  See id.


24
While it is possible that, like the appellants in DKT, IPAA's  failure to amend its pleading at an earlier stage in this  litigation may have been "more inadvertent than deliberate,"  id. at 1239, unlike in DKT, IPAA fails to articulate what  "interest of justice" would be served by allowing it to amend  its complaint now, roughly seven years after it filed the  original complaint and six years after DOI issued the Samedan decision.  Additionally, in contrast to the DKT appellants, who merely sought to amend their claim to add a single  factual allegation, IPAA seeks to add an entirely new claim. However, as we have said before, new claims "cannot set sail,  initially, on appeal if courts are to operate with reasonable  speed and efficiency." Shipbuilders Council of Am. v. United States, 868 F.2d 452, 456 n.2 (D.C. Cir. 1989).


25
Finally, we question whether IPAA's amendment would  "convert their action into a justiciable case."  Id.  Instead,  permitting IPAA to amend its claim likely would lead this  Court into a jurisdictional morass.  See, e.g., Abbott Labs. v.  Gardner, 387 U.S. 136, 148-54 (1967);  Student Loan Mktg.  Ass'n v. Riley, 104 F.3d 397, 406-07 (D.C. Cir. 1997);  Shell  Oil Co. v. FERC, 47 F.3d 1186, 1201-02 (D.C. Cir. 1995); Aeronautical Radio, Inc. v. FCC, 983 F.2d 275, 284 (D.C. Cir.  1993);  Shipbuilders Council, 868 F.2d at 456;  Radiofone,  Inc. v. FCC, 759 F.2d 936, 939 (D.C. Cir. 1985) (Scalia, J.,  opinion).  Accordingly, we are compelled to deny IPAA's  request.

III. CONCLUSION

26
For the reasons stated above, the District Court's judgment is


27
Affirmed.



Notes:


1
 For a detailed explanation of the statutes and regulations that  form the basis for this litigation and the history of the take-or-pay  settlements at issue, see Independent Petroleum Association of  America v. Babbitt ("IPAA I"), 92 F.3d 1248, 1251-53 (D.C. Cir.  1996).


2
 Originally, IPAA's current appeal was consolidated with Shell  Offshore, Inc. v. Department of the Interior.  Shell and DOI filed a  joint motion to stay all proceedings in the Shell cases.  On August  8, 2000, this Court granted the motion.


