Woods Petroleum Corp. v. Department of Interior

ON REHEARING EN BANC EBEL, Circuit Judge. We granted the request for rehearing en banc in this case to clarify the Secretary of the Interior’s authority under 25 U.S.C. § 396 to disapprove a proposed oil and gas communization agreement that includes Indian-owned mineral interests. Woods Petroleum Corporation and other oil companies (“Woods Petroleum”) commenced this action to challenge the Secretary’s order rejecting a proposed agreement to communize Indian and non-Indian mineral interests for oil and gas production in the Anadarko region of Oklahoma. The district court upheld the Secretary’s order. A panel of this court reversed and remanded with instructions to reverse the Secretary’s order and to approve the proposed communization agreement. Woods Petroleum Corp. v. United States Dep’t of Interior, 18 F.3d 854 (10th Cir.1994). The United States Department of the Interior, Tomlinson Properties, Inc., and certain of the Indian lessors petitioned for rehearing en banc on the grounds that our panel decision clashed with earlier Tenth Circuit authority. Today, we make explicit that the Secretary acts arbitrarily and abuses his discretion under § 396d when he (1) rejects a proposed communization agreement for the sole purpose of causing the expiration of a valid Indian mineral lease and allowing the Indian lessors to enter into a new, more lucrative, lease, and then (2) approves essentially the identical communization agreement, with the new lessee of the Indian lands simply substituted for the old lessee, and permits the Indian lessors to collect royalties retroactively to the date of first production under the original unit plan. Accordingly, we adhere to our panel decision’s reversal of the district court order and we remand with instructions to approve the Woods Petroleum communization agreement. I. Background Our panel opinion provides a full recitation of the factual background to this action, Woods Petroleum, 18 F.3d at 855-57, but we review the critical events and rulings to frame our analysis. In February 1977, the [1035] Indians named in this action leased their undivided interest in 117.5 net mineral acres in Custer County, Oklahoma to National Cooperative Refinery Association (“National”). The three leases granted National an exclusive right to drill for and extract all oil and gas underlying the land for a primary term of five years and “as much longer thereafter as oil and/or gas is produced in paying quantities.”1 The Concho Agency Superintendent of the Bureau of Indian Affairs (“BIA”), an agency in the United States Department of Interior (“Interior”), approved the leases. Next, the BIA approved National’s assignment of its interest in the leases to Woods Petroleum. On May 18, 1979, the Oklahoma Corporation Commission (“Commission”) established a 640-acre drilling and spacing unit that included this Indian land.2 On December 1, 1981, all working interest owners in the unit area executed a communization agreement, naming Woods Petroleum as the unit operator (“Woods Petroleum communization agreement”). Communization permits the development of several contiguous leaseholds as a single unit, so that “operations conducted anywhere within the unit area are deemed to occur on each lease within the communi-tized area and production anywhere within the unit is deemed to be produced from each tract within the unit.” Kenai Oil & Gas, Inc. v. Dep’t of the Interior, 671 F.2d 383, 384 (10th Cir.1982). Pursuant to the communization' agreement — and six weeks prior to the expiration date of the leases — Woods Petroleum commenced drilling the authorized well on a non-Indian tract within the unit on January 5, 1982. On February 17, 1982, also prior to the expiration of the Indian leases, Woods Petroleum submitted the communization agreement to Interior for its approval. An approved communization agreement, in conjunction with the “commence drilling” clause, would extend Woods Petroleum’s leases beyond the primary term for as long as there is production in paying quantities. On April 12, 1982, the Anadarko Area Director of the BIA approved the proposed Woods Petroleum communization agreement over the Indian lessors’ objections. The Indian lessors had unsuccessfully argued that communization was not in their economic best interest because the Secretary’s disapproval of the agreement would trigger the expiration of the Indians’ existing leases and facilitate the execution of more profitable leases. On September 6,1983, the Indians filed an administrative appeal to the Assistant Secretary of Interior.3 Notably, the Indians did not object to any particular provision in the communization agreement. Instead, they simply argued that their mineral interests could easily be released “on a competitive bid basis and with a stroke of a pen a Communi-zation Agreement can be signed by the Area Director joining validly leased Indian Allotments to the spacing Unit.” [1036] To evaluate the Indians’ appeal, the Deputy Assistant Secretary requested the BIA Area Director to prepare a “best interest assessment.” The BIA’s “best interest assessment” advised the Assistant Secretary to affirm the Area Director’s approval of the Woods Petroleum communization agreement for many reasons. First, the BIA opined that prevailing market conditions could stifle the separate development of the Indian interests under new leases and that the Oklahoma Corporation Commission may not approve independent production, transportation and sale of product.4 Second, the BIA noted that the Indians would forfeit nearly $400,000 in unit royalties currently held in escrow under the state-approved spacing unit in which production had already occurred. And finally, the BIA presciently anticipated that rejection of the communization agreement could invite protracted litigation. After receiving the BIA’s recommendation, the Assistant Secretary solicited comments from both the Indians and Woods Petroleum. Again, the Indians expressed their desire to be able to release their mineral interests for a bonus exceeding $400,000 and then to “be immediately joined with the 640 acre spacing by a Communization Agreement.” Notwithstanding the BIA’s recommendation, the Assistant Secretary reversed the BIA Area Director’s approval of the Woods Petroleum communization agreement on May 15, 1986. The Assistant Secretary did not challenge the appropriateness of the communization agreement as establishing a proper geological and economic unit. Instead, the Assistant Secretary focused on the underlying Indian leases and concluded that it would be in the Indians’ best interest to allow the Woods Petroleum leases to expire so that the Indians could enter into new leases with Defendant-Appellee Tomlinson Properties, Inc. (“Tomlinson”), who was willing to pay the Indians a $400,000 bonus. The Assistant Secretary did not. address the BIA’s specific rationales in support of communization and thus did not analyze the factors enumerated in the BIA guidelines. Relying exclusively on Tomlinson’s bonus offer, the Assistant Secretary disapproved the Woods Petroleum communization agreement and issued an order declaring that the Woods Petroleum leases had expired for failure to drill, produce, or communitize during the primary term. On the heels of the Assistant Secretary’s order, the Indians promptly released their interest in the 117.5 net mineral acre estate to Tomlinson for a $400,000 bonus. The BIA Area Director approved the new leases on May 23, 1986. Pursuant to the Area Director’s approval, the Indian interests were reinserted in the 640-acre state spacing unit. Tomlinson next drafted a communization agreement that was, in all material respects, identical to the Woods Petroleum communi-zation agreement (“Tomlinson communization agreement”). Not only did the Tomlin-son communization agreement apply to the same spacing unit, but it was postdated to take effect as of September 1,1982 — thereby enabling the Indian lessors to obtain unit revenues retroactive to the time of first production four years earlier from the first unit well drilled on the spacing unit covered by the Woods Petroleum communization agreement. On September 22,1986, the Assistant Secretary approved the new Tomlinson com-munization agreement. On July 28, 1986, Woods Petroleum commenced this action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., in the United States District Court for the Western District of Oklahoma, against Interior, the BIA, the Indian lessors, and Tomlinson. Woods Petroleum alleged that the Assistant Secretary’s rejection of the Woods Petroleum communization agreement was arbitrary and capricious and thus should be vacated. Additionally, Woods Petroleum sought an order declaring its 1977 leases superior to the Tomlinson leases. In the alternative, Woods Petroleum argued that if the court upholds the Tomlinson communization agreement, Woods Petroleum was enti1037 tied to a refund of all proceeds of unit production paid to the Indians under the 1977 leases. The district court upheld the Assistant Secretary’s order rejecting the Woods’ com-munization agreement as a valid exercise of discretion, and subsequently ruled that the Indian mineral interests would be treated as part of the unit from the date of first production, and thus the Indians were entitled to unit royalties back to 1982. Woods Petroleum timely filed its appeal and we reversed and remanded with instructions to reinstate the BIA’s order approving the Woods Petroleum eommunization agreement and to declare void the Tomlinson lease and the Tomlinson eommunization agreement. Woods Petroleum, 18 F.3d at 860. The panel concluded that “the sole reason behind the Secretary’s rejection of the [Woods Petroleum] eommunization agreement was to provide a pretext for the ulterior motive of enabling the Indian lessors to acquire an additional bonus payment from a new potential contracting party.” Id. at 859. “[T]o reject a eommunization agreement for that purpose, and then to accept essentially an identical eommunization agreement, particularly while permitting retroactive benefits to inure to the Indian lessors, constitutes arbitrary and capricious conduct and cannot stand.” Id. at 859-60. Our analysis followed quite closely the law previously established in Cotton Petroleum Corp. v. United States Dep’t of Interior, 870 F.2d 1515 (10th Cir.1989). On April 21, 1994, the government filed a petition for rehearing with suggestion for en banc consideration, arguing that Woods Petroleum and Cotton Petroleum are inconsistent, at least in philosophy, with Kenai, 671 F.2d at 386-88, and Cheyenne-Arapaho Tribes of Oklahoma v. United States, 966 F.2d 583 (10th Cir.1992), cert. denied, — U.S.-, 113 S.Ct. 1642, 123 L.Ed.2d 265 (1993), and — U.S.-, 113 S.Ct. 1643, 123 L.Ed.2d 265 (1993). The government’s petition stated that the alleged disparities in these opinions cast a cloud of uncertainty over the factors that Interior may consider in approving or rejecting future eommunization agreements involving Indian lessors. We granted the petition for en banc consideration to clarify the Secretary’s authority to approve and reject eommunization agreements. In so doing, we adhere to the legal principles articulated in our panel decision, Cotton Petroleum, Kenai, and Cheyenne-Arapaho. II. Discussion Under the Administrative Procedure Act, we may set aside an agency decision that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A); Cotton Petroleum, 870 F.2d at 1525. An agency decision may be arbitrary and capricious if it fails to consider important relevant factors. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 42-43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983); Cotton Petroleum, 870 F.2d at 1525-26. Alternatively, the decision is arbitrary and capricious if there is no “rational connection between the facts found and the choice made.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974). Congress has empowered the Secretary of the Interior with an important supervisory role over oil and gas eommunization agreements involving Indian mineral interests. See Indian Mineral Leasing Act of 1938, 25 U.S.C. § 396a et seq. Pursuant to 25 U.S.C. § 396d, the Secretary has the discretion to approve or prescribe a “reasonable cooperative unit.” All operations under any oil, gas, or other mineral lease issued pursuant to the terms of sections 396a to 396g of this title or any other Act affecting restricted Indian lands shall be subject to the rules and regulations promulgated by the Secretary of the Interior. In the discretion of said Secretary, any lease for oil or gas issued under the provisions of sections 396a to 396g of this title shall be made subject to the terms of any reasonable cooperative unit or other plan approved or prescribed by said Secretary prior or subsequent to the issuance of any such lease which involves [1038] the development of oil or gas from land covered by such lease. Id.; see also 25 C.F.R. §§ 211.21(b) (governing tribal lands) & 212.24(c) (governing allotted lands).5 Thus, inclusion of Indian mineral interests in a cooperative plan, including a state-ordered spacing unit, requires the Secretary’s approval. To guide the Secretary’s evaluation of a proposed communization agreement involving Indian mineral interests, the BIA promulgated guidelines in 1982 that identify three critical factors: (1) whether the long term economic effects of the proposed agreement are in the Indian lessor’s best interest; (2) whether the engineering and technical aspects of the agreement adequately protect the Indian lessors; and (3) whether the lessee has complied with the terms of the lease in all respects prior to its expiration date. Cotton Petroleum, 870 F.2d at 1518 (quoting the BIA Guidelines). The first two of these factors require the Secretary to focus on the communization agreement, and the third factor simply asks if the lessee is in default under the existing lease. In evaluating the Secretary’s actions, we must keep in mind that the Secretary and his delegates act as the Indians’ fiduciary and thus must represent the Indians’ best interests. Cheyenne-Arapaho, 966 F.2d at 588-89; Cotton Petroleum, 870 F.2d at 1524; Kenai, 671 F.2d at 386. The power to manage and regulate Indian mineral interests carries with it the duty to act as a trustee for the benefit of the Indian landowners. Jicarilla Apache Tribe v. Supron Energy Corp., 728 F.2d 1555, 1563-65 (10th Cir.1984) (Seymour, J., concurring in part and dissenting in part), reh’g en banc, 782 F.2d 855 (10th Cir.) (adopting dissenting opinion), modified, 793 F.2d 1171, 479 U.S. 970, 107 S.Ct. 471, 93 L.Ed.2d 416 (1986). Yet, as with any trustee-beneficiary relationship, the Secretary’s fiduciary duty to the Indians under § 396d is not boundless and cannot be exercised in a manner that exceeds or flouts the authorizing statute and regulations. When the Secretary deviates from firmly established procedures, or exceeds the limits of his fiduciary duty, we have found an abuse of discretion and have reversed the Secretary. For example, we have consistently admonished the Secretary to analyze all relevant factors and have reversed rulings that either disregarded certain factors or treated one factor as determinative. In Kenai, the lessee alleged that the Secretary’s rejection of a communization agreement constituted an abuse of discretion because the Secretary refused to confine his analysis to production and conservation matters. Kenai, 671 F.2d at 387. We eschewed the lessee’s restrictive approach and upheld the Secretary’s ruling because he properly considered “all relevant factors,” including the Indian lessors’ economic best interests. Id. at 386-87. Likewise, in Cotton Petroleum, we reversed the Secretary’s rejection of a communization agreement, in part, because “the Secretary failed to discuss or analyze all of the relevant factors required in reaching his decision, mandated under his guidelines.” Cotton Petroleum, 870 F.2d at 1525-26. And more recently in Cheyenne-Arapaho, we held that the Secretary abused his discretion by approving a communization agreement without first considering relevant economic factors. Cheyenne-Arapaho, 966 F.2d at 589-91.6 As the Secretary’s clearly articulated factors in the BIA guidelines make clear, the issue before the Secretary is whether the communization agreement should be approved, and it is not whether the underlying leases, which previously had been approved by the Secretary, were a good deal or bad [1039] deal with the benefit of hindsight. When the Secretary first disapproved the communization agreement for the sole purpose of causing the underlying leases to terminate, and then immediately thereafter approved an identical communization agreement for the new leases, it is obvious that the Secretary was not really evaluating the communization agreement at all. Rather, he was using his power in an arbitrary way to disapprove the communization agreement as a mere vehicle to cause the underlying leases to terminate. In Cotton Petroleum, the record demonstrated that the Secretary did not reject the proposed communitization agreement because the proposed unitization agreement was detrimental to the Indian lessors. Rather, the sole reason behind the Secretary’s disapproval was to facilitate the expiration of the original lease and thus to permit the Indian lessors to acquire a new bonus payment from a new lessee, who eagerly offered an additional premium because drilling had already commenced in the spacing unit. Cotton Petroleum, 870 F.2d at 1527. With the Indians’ more lucrative lease in hand, the Secretary turned around and approved the identical communitization agreement, ordered inclusion of the Indian tract in the same spacing unit, and awarded retroactive benefits under the original agreement. Id. We reversed because “[ijnstead of evaluating the communitization agreement on its merits, the Secretary used its rejection as a triggering event to cause the termination of a separate instrument, the lease.” Id. at 1528.7 We found no such duplicitous evaluation of a communization plan in Kenai. In Kenai, the Secretary simply concluded that com-munization was economically unsatisfactory for the Indians given the likelihood of increased revenues under a new lease. There, productive wells had been drilled directly on the Indian land and there was no suggestion that the new lease would be pooled with neighboring tracts. Kenai, 671 F.2d at 387. In contrast to the actions of the Secretary in the instant case and in Cotton Petroleum, the Secretary in Kenai did not take inconsistent and arbitrary positions with regard to com-munization.8 Similarly, there is nothing in our opinion in Cheyenne-Arapaho suggesting that the Secretary could take inconsistent positions on a communization agreement merely to allow Indians the opportunity to release their land on more attractive terms. To the contrary, we simply held there that the Secretary breached his fiduciary duty to the Indians by approving communization without considering the economic impact to Indian mineral interest owners if their tracts were de-spaced. Cheyenne-Arapaho, 966 F.2d at 590-91. Communization in Cheyenne-Arapaho involved only Indian land, and wells had already been drilled on several of the Indian leases. The issue was only whether the Secretary should have considered the economic consequences of new leases as contrasted to the communitized development of the Indian land, and we held that the Secretary should have considered all factors. Thus, Kenai, Cotton Petroleum, and Cheyenne-Arapaho define certain boundaries for the Secretary’s supervisory authority under 25 U.S.C. § 396d and his fiduciary duty to Indian mineral interests. As a threshold matter, we have consistently adhered to the principle that the Secretary must analyze all relevant factors articulated in the 1982 BIA guidelines ’in judging the [1040] propriety of a proposed eommunization agreement. Further, the Secretary’s task under § 396d is to provide a bona fide evaluation of the eommunization plan, not to use that evaluation as a mere vehicle to achieve an ulterior objective otherwise unattainable. Cf. United Nuclear Corp. v. United States, 912 F.2d 1432, 1438 (Fed.Cir.1990) (holding that the Secretary’s refusal to approve a mining plan submitted by a mining company that had been awarded leases on Indian reservation constituted a taking under the Fifth Amendment, rather than a proper exercise of fiduciary duty, because, in part, the Secretary’s action was “an attempt to enable the Tribe to exact additional money from a company with whom it had a valid contract”). This is not to say that the Secretary may not reject a eommunization agreement either because an analysis of all relevant factors fairly leads to the conclusion that the particular agreement is not advantageous to the Indians, or because the Secretary determines that it is in the Indian lessor’s best interests to forego eommunization altogether. However, it is to say that the process of evaluating a eommunization agreement is not a sham process but rather must be exercised in good faith, and the Secretary may not act arbitrarily and inconsistently in exercising his approval powers. The Secretary acknowledges that the sole purpose behind his disapproval of the Woods Petroleum eommunization agreement was to enable the Indian lessors to enter into more profitable leases with Tomlinson. Sweeping aside the BIA guideline factors, which his delegate had concluded pointed strongly in favor of approving the Woods Petroleum agreement, the Secretary mimicked the wrongful actions in Cotton Petroleum by: (1) rejecting one eommunization agreement for the sole purpose of allowing a valid lease to expire and to be replaced by a more lucrative lease; and then (2) including the Indian mineral interests in the same state-ordered spacing unit under an identical eommunization agreement, and awarding retroactive royalties generated by the unit. The Secretary found no factor intrinsic to the Woods Petroleum eommunization agreement that merited disapproval. Indeed, the Secretary ignored the relevant eommunization factors spelled out in the 1982 BIA guidelines, namely the long-term economic effects of the communi-zation agreement, the conservation and technical aspects of the agreement, and whether the lessee complied with the lease terms. Cotton Petroleum, 870 F.2d at 1518. An additional factor that separates Cheyenne-Arapaho and Kenai from the instant case and Cotton Petroleum is that the Indian mineral interests in Cheyenne-Arapaho and Kenai had not been placed in a state-ordered spacing unit at the time the lessees presented the proposed eommunization agreement to the Secretary for his approval. Here, as in Cotton Petroleum, the Oklahoma Corporation Commission had already approved a 640-acre drilling and spacing unit, signifying that the Indian mineral interests were situated within a common source of supply. Because the Secretary must approve any state-ordered spacing unit that includes Indian mineral interests, 25 C.F.R. § 212.24(c), the Oklahoma Corporation Commission’s spacing order does not protect the Indian mineral owners until the Secretary approves the plan. Absent a eommunization agreement, Indian owners of tracts adjacent to a producing well may have no right to share in the revenues generated by that well, even if oil and gas has been drained from their property. Thus, both here and in Cotton Petroleum — where the only producing wells were off Indian land — the Secretary’s rejection of the eommunization agreement risked forfeiture of the Indian mineral owners’ right to share unit revenues generated from the producing wells on non-Indian tracts within the unit and jeopardized the independent development of the Indian tracts. The Secretary sought to avert these adverse ramifications in the instant case and in Cotton Petroleum by promptly approving new eom-munization agreements and awarding the Indian mineral owners royalties retroactive to the date of first production in the unit. In so doing, however, the Secretary merely demonstrated the arbitrariness of his action in disapproving the eommunization agreement.9 [1041] Having concluded that the Secretary acted arbitrarily and abused his discretion, we next consider the appropriate remedy. Under the APA, a reviewing court must rely on the administrative record to assess the validity of the agency action. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per curiam). When the agency has failed to explain adequately the rationale underlying its action, and “further explanation is necessary to a proper assessment of the agency’s decision,” the court should ordinarily remand for further proceedings. Id. at 143, 93 S.Ct. at 1244. As we explained in our panel opinion, “[i]f the only deficiency in the Secretary’s actions were an inadequate analysis and discussion of all relevant factors [in the BIA guidelines],” remand would be appropriate in light of Camp. Woods Petroleum, 18 F.3d at 859. However, remand for further explanation would be fruitless in this ease because the Secretary has unequivocally explained his action as intended to facilitate the expiration of the Woods Petroleum lease and the Indians’ receipt of a bonus payment from Tomlinson. With respect to the propriety of the Woods Petroleum communization agreement, neither the Secretary nor the Indian lessors has ever identified any deficiencies, and the Secretary’s approval of the identical Tomlinson communization agreement is tantamount to an approval of the reasonableness of the Woods Petroleum communization agreement. In fact, the BIA Area Director’s “best interest assessment,” properly analyzed through the lens of the 1982 BIA guidelines, recommended approval of the Woods Petroleum communization agreement. Because this recommendation provides a full recitation of the relevant factors, and no parties object to the substance of the BIA’s evaluation of the communization agreement, we conclude that the BIA Area Director’s approval of the Woods Petroleum communization agreement should be upheld. III. Conclusion For the foregoing reasons, we REVERSE the district court’s order and REMAND with instructions to reverse the Secretary’s order, to reinstate the BIA Area Director’s approval of the Woods Petroleum communization agreement, to declare that the Woods Petroleum leases have not expired, and to declare void both the Tomlinson communization agreement and the Tomlinson leases. Finally, we direct the court to conduct an accounting of all funds involved, including bonuses,with distribution and/or return to follow as if the Area Director’s approval of the Woods Petroleum communization agreement had been timely adopted and AFFIRMED. Footnotes [1] The leases contain a "commence drilling” clause and a "consent to unitization” clause. The "commence drilling” clause provides that: If the lessee shall commence to drill a well within the term of this lease, the lessee shall have the right to drill such well to completion with reasonable diligence and if oil or gas, or either of them, be found in paying quantities, this lease shall continue and be in force with like effect as if such well had been completed within the term of years herein first mentioned. The "consent to unitization” clause states that: The parties hereto agree to subscribe to and abide by any agreement for the cooperative or unit development of the field or area, affecting the leased lands, or any pool thereof, if and when collectively adopted by a majority operating interest therein and approved by the Secretary of the Interior.... [2] The Oklahoma Corporation Commission is authorized "to establish well spacing and drilling units of specified and approximately uniform size and shape covering any common source of supply ... of oil or gas within the State of Oklahoma.” Okla.Stat.Ann. tit. 52, § 87.1(a) (West 1991). "The purpose, and usual effect, of pooling [i.e. designating spacing units] is to prevent the physical and economic waste that accompanies the drilling of unnecessary wells.” Howard R. Williams and Charles J. Meyers, Oil and Gas Law, Vol. 6, § 901 at 3 (1993). [3] During the pendency of this appeal. Interior escrowed the unit royalties attributable to the Indian tracts under the state-ordered spacing unit. [4] The BIA explained that three wells had been drilled in the spacing unit, all on non-Indian tracts, but only one well was profitable. The profitable well was farthest away from the Indian tracts, whereas the two unprofitable wells were adjacent to the Indian tracts. Based on these production results, the BIA could give no assurance that a profitable well could be located on the Indian tracts. [5] Section 211.21(b) provides: All such leases shall be subject to any cooperative or unit development plan affecting the leased lands that may be required by the Secretary of the Interior, but no lease shall be included in any cooperative or unit plan without prior approval of the Secretary of the Interior and consent of the Indian tribe affected. Section 212.24(c) provides: All leases issued pursuant to the regulations in this part shall be subject to a co-operative or unit development plan affecting the leased lands if and when required by the Secretary of the Interior. [6] Moreover, the Secretary's mere perfunctory recitation of one or more relevant factors does not constitute adequate consideration. Cotton Petroleum, 870 F.2d at 1525-26. [7] In essence, the Secretary's actions in Cotton Petroleum permitted the Indians to take a fresh look at the value of their mineral interests while neither incurring additional expense nor heightened risk. That the Secretary awarded retroactive benefits under the communization agreement provided further evidence of the fairness of the original agreement and the inconsistency — and hence arbitrariness — of the Secretary’s action. Cotton Petroleum, 870 F.2d at 1527. [8] Our opinion in Cotton Petroleum underscored this crucial distinction to Kenai: [In Kenai ], the Secretary ... was not taking inconsistent positions as to whether the Indian lessor was in or out of the communization unit. Rather, the Secretary in Kenai refused to approve the communization agreement for any purpose. We were not faced there with a situation where the Secretary was seeking simultaneously to free the Indian lessor from the burdens of the communization agreement while retaining for the Indians its benefits. Cotton Petroleum, 870 F.2d at 1528 n. 4. [9] Further, the Secretary's order in the instant case appears improperly to have penalized [1041] Woods Petroleum for waiting “until the eleventh hour to submit a Communization Agreement for approval.” Aplt.App. at 132. The Secretary noted that Woods Petroleum failed to commence drilling on the Indian land during the primary term of the lease, and thus “voluntarily assumed the risk not only that the Department might not act on the Agreement prior to the expiration of the leases, but that the Agreement might be disapproved.” Id. However, the record establishes that Woods Petroleum submitted a fully-executed communization agreement to the Secretary, and had drilled a well in the state-ordered spacing unit, before the primary terms of the original 1977 leases were due to expire. Indeed, we explained in Cotton Petroleum that submission of a communization agreement to Interior prior to the expiration of the lease's primary term constitutes timely filing. Cotton Petroleum, 870 F.2d at 1523. Neither 25 U.S.C. § 396d nor the regulations promulgated thereunder specify time restrictions for the Secretary’s review of a proposed communization agreement. It is not unusual in oil and gas production for a lessee to drill the qualifying well, or execute a spacing unit agreement, near the end of the primary term of the lease. For instance, the lessee in Cotton Petroleum commenced drilling in the unit eighteen days prior to the expiration of the lease, whereas drilling commenced fifty-one days prior to the lease expiration date in the instant case.