634 MOBIL OIL EXPLORATION & PRODUCING
SOUTHEAST, INC. v. UNITED STATES Stevens, J., dissenting
(and to refrain from taking actions) inconsistent with the Government's existing legal obligations to the lessees. Had the Secretary chosen, despite the OBPA, to issue the required approval, he presumably could have been haled into court and compelled to rescind the approval in compliance with the OBPA requirement.6 But that this possibility remained after the passage of the OBPA reinforces the conclusion that it was not until the Secretary actually took action inconsistent with his contractual obligations that the Government came into breach.
In rejecting the Government's argument that the breach was insufficiently material, the Court's reliance on the danger of rendering the parties' bargain illusory, see ante, at 620, is simply misplaced. I do not contest that the Government was contractually obliged to give petitioners' POE prompt consideration and to approve the POE if, after that consideration, it satisfied existing OCSLA demands; nor would I suggest that petitioners did not receive as part of their bargain a promise that the Government would comply with the procedural mechanisms established at the time of contracting. But that is all quite beside the point; the question is not whether this approval requirement was part of the bargain but whether it was so "essential" to the bargain in the scope of this continuing contract as to constitute a total breach.
6 The result of such a proceeding may well have been the issuance of a judicial decree enjoining the Secretary's actions. Ironically, the Secretary would then have been authorized under the regulatory provisions expressly incorporated into the parties' contracts to suspend the leases. 30 CFR § 250.10(b)(7) (1990) ("The Regional Supervisor may also direct . . . suspension of any operation or activity, including production, because . . . (7) [t]he suspension is necessary to comply with judicial decrees prohibiting production or any other operation or activity, or the permitting of those activities . . ."). Indeed, this was the very provision the DOI relied on in explaining why it was suspending petitioners' leases. App. 129-130.
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