CHALLENGING AGENCY ACTION AND INACTION: THE PROBLEM OF LEADING A HORSE TO WATER

JurisdictionUnited States
Natural Resources and Environmental Administrative Law and Procedure II
(Sep 2004)

CHAPTER 12A
CHALLENGING AGENCY ACTION AND INACTION: THE PROBLEM OF LEADING A HORSE TO WATER

Constance E. Brooks
C.E. Brooks & Associates, P.C.
Denver, Colorado

Constance E. Brooks specializes in federal regulatory issues, including aviation noise and land use (Airport Noise and Capacity Act and National Environmental Policy Act), natural resources, and related environmental matters, such as mining, mineral leasing, rights of way and access rights, livestock grazing, as well as federal and state land use planning. She has handled federal litigation in most western states and in the District of Columbia, including the livestock industry challenge to the Department of the Interior rangeland regulations.

Ms. Brooks started her own firm in Denver, Colorado in January, 1993. Prior to that she practiced law in Portland, Oregon for four years, where she was a member of the firms of Davis Wright Tremaine and Lindsay, Hart, Neil & Weigler. From 1982 to 1988, Ms. Brooks was Vice President and General Counsel of Mountain States Legal Foundation in Denver, Colorado.

Before moving to Denver, Colorado in 1982, Ms. Brooks worked in Washington, D.C. for an Alaska-based law firm which represented Alaskan clients on the proposed wilderness legislation now known as the Alaska National Interest Lands Conservation Act. The practice included Alaska Native corporation issues, mining law, state land selections and related statehood issues, the Antiquities Act of 1906, and rights under the Wilderness Act of 1964. Statehood issues pertaining to state lands, regulation of wildlife, and water rights were prominent.

Ms. Brooks is a 1977 graduate of Tulane Law School and a member of the bar in Virginia, Alaska, Colorado, Oregon, and the District of Columbia. She served on the Standing Committee on Environmental Law of the American Bar Association from 1986 to 1990 and is a frequent lecturer on public land and environmental issues.

Reprinted from Natural Resources and Environmental Administrative Law and Procedure, Paper 11 (Rocky Mt. Mineral Law Fdn. 1999)

TABLE OF CONTENTS

I. PRELIMINARY CONSIDERATIONS

A. Identifying The Legal Rights Which Are The Basis For A Cause of Action

B. Avenues for Judicial Review

C. Nonstatutory Review of Agency Action

1. Challenges to Executive Action

2. Differences, If Any, Between Ultra Vires and APA

3. Ex parte Young: Surviving Remnants of Doctrine

II. MEETING JURISDICTIONAL PREREQUISITES

A. Constitutional Requirement of Case or Controversy

1. Injury in fact

2. Causation and Redressability

3. Prudential Standing: Within Zone of Interests

B. Additional Jurisdictional Hurdles

1. Final Agency Action Under APA

2. Ripeness

3. Doctrine of Administrative Waiver

III. SUBSTANTIVE ISSUES FOR REVIEWING AGENCY ACTION OR INACTION

A. Chevron Two Step: Criticized But Followed

B. Nondelegation Doctrine: A Path Away From Chevron

C. An Additional Test For Unreasonable Delay

D. Developing the Facts: Discovery and Administrative Records

E. Facial Versus As Applied Challenges

IV. DEFINING THE REMEDY

A. Declaratory Relief

B. Injunctive Relief

C. Mandamus

D. Blending Writ And APA Relief

V. CONCLUSIONS

%sRocky Mountain Mineral Law Foundation%s

Special Institute on Natural Resources and Environmental

Administrative Law & Procedure

November 17-18, 1999

Compelling an administrative agency to act or preventing the agency's decision from being implemented is a difficult objective. A lawyer needs to be thoroughly grounded in the more arcane aspects of administrative procedure, especially the procedures of a particular agency, the complexities of federal court jurisdiction, and then equally well-versed in how to prepare a record which can withstand even the most rigorous government defenses.

Regardless of whether the client wishes to use or to protect public land resources, there are common problems when the Department of the Interior ("DOI"), the Bureau of Land Management ("BLM"), or the Department of Agriculture, Forest Service ("Forest Service") simply fails to act or acts contrary to law. If the BLM or Forest Service issues a decision, there are procedures for an administrative appeal 1 and then procedures to take the case to federal court. The legal options are less clear when no action is taken and years are allowed to elapse while the status quo remains in place. Certainly, members of environmental groups object when the BLM or the Forest Service fail to adopt allotment management plans for livestock grazing on specific allotments. Oil companies find themselves frustrated when public lands which are classified as available for sale under the Mineral Leasing Act 2 never appear on the sale list, despite assurances that the lands will be offered for sale. County governments, which seek to acquire public lands through lease, sale, or land exchange, find their land projects delayed because these transactions are often a low priority. In each of these cases, compelling the BLM or the Forest Service to do what the law appears to require or permit can be very difficult.

This paper will focus almost entirely on challenging federal agency action or inaction by DOI or the Forest Service and will discuss: (1) the role of federal statutes in judicial review, (2) federal jurisdiction and related procedural doctrines, (3) procedural and substantive idiosyncrasies of administrative law, including standard of review of agency action, and (4) drafting the relief in terms of the statutory and judicial authority. Other speakers will cover statute of limitations and other effects of delay, as well as exhaustion of administrative remedies.

I. PRELIMINARY CONSIDERATIONS

A. Identifying The Legal Rights Which Are The Basis For A Cause of Action

Legal rights in federal land issues can be classified as substantive or procedural. For the most part, they are derived from specific federal laws but will also arise based on contracts or permits authorized by federal law. The likelihood of success in enforcing these rights increases in inverse proportion to the amount of discretion the Forest Service or BLM has to modify or even deny the legal rights. The nature of the legal right will also shape whether the courts can grant the relief desired, or whether it will be necessary to seek a remedy which indirectly addresses the problem, because there is no judicially recognized remedy.

The strongest basis to compel agency action or to challenge agency inaction is when the party is asserting rights granted by federal law. For instance, the 1872 Mining Law conveys the right to explore, develop, and patent land for the discovery of a valuable mineral. 3 Because this right does not depend on any agency approval or decision at the outset, it can be perfected without relying on agency approval and once perfected the government has limited discretion to deny or qualify the right. 4 Similarly, the Alaska National Interest Lands Conservation Act ("ANILCA") gives landowners the right to cross federal land to reach their private land, subjection to "reasonable regulation." 5 Congress authorized the dedication of public land for rights of way in R.S. 2477, 6 now repealed by Federal Land Policy and Management Act ("FLPMA"), and expressly preserved all rights under the law in FLPMA's savings provision. 7

The next class of rights are those which are created at the discretion of the agency, but once created the BLM or the Forest Service must honor the terms of the agreement. For instance, a decision to issue an oil and gas lease under the Mineral Leasing Act, 8 is discretionary, but once the lease is issued, it conveys the right to drill and produce oil or gas. 9 Logging contracts are fully enforceable and if they cannot be fulfilled, the owner of the contract is entitled to compensation. 10 The Forest Service and BLM have discretion whether to enter into ski area leases, common material leases, 11 and other agreements, but once signed the agreements are binding on the United States. Other agreements while contractual in form, reserve to the Forest Service or BLM the right to revoke the agreement at will.

The Administrative Procedure Act ("APA"), 12 FLPMA, 13 the National Forest Management Act, 14 and the National Environmental Policy Act ("NEPA") 15 all establish procedural rights which assure the public the right to information about and the right to comment on BLM and Forest Service policies, programs, regulations, and other actions. There are also procedural rights under the Endangered Species Act ("ESA") to ensure that every agency consults with the U.S. Fish and Wildlife Service ("USFWS") with respect to any action which may affect a threatened or endangered species 16

Finally, there are other classes of rights to use the public lands which are less a right and more an interest. For example, no law creates a right to use public lands for off-road vehicles or hunting but these interests are recognized as among the multiple uses which guide management of National Forests and the public lands. 17 These rights do rise to the level of a legal interest which, if paired with a procedural right, might entitle the proponent to the desired agency decision. 18 Because no rights are created by law or agreement, the courts will decline to substitute their judgment from that of the Forest Service or BLM.

The following example illustrates how the hierarchy of legal rights will be recognized and enforced. The owner of a valid mining claim must file a plan of operations 19 to develop the mine but case law under the Mining Laws recognizes that unpatented mining claims are property rights and the owner is assured the right to develop and remove valuable minerals. 20 Thus, the applicant has legal rights which must be recognized by BLM or Forest Service. On the other hand, the local environmental group opposed to the mine will only have an...

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