CHAPTER 1 THE ADMINISTRATIVE PROCESS IN NATURAL RESOURCES DEVELOPMENT
| Jurisdiction | United States |
(Nov 1981)
THE ADMINISTRATIVE PROCESS IN NATURAL RESOURCES DEVELOPMENT
Holland & Hart
Washington, D.C.
Introduction.
My assignment is to present a broad overview of "administrative law" as it relates generally to natural resources development and related environmental constraints on such development. The three speakers this morning generally define "administrative law" in this context as the law that governs relations between resource users and government agencies. The principal focus of this paper will be on federal administrative law as it relates to the federal land and water management agencies and the Environmental Protection Agency (EPA), which administers programs that cut across all natural resources development. However, I think it is safe to say that the basic principles apply as well to the state counterparts of those agencies.
The Constitutional and Legislative Framework.
The United State Constitution makes no provision for nor confers any authority on "administrative agencies." Rather, it vests the legislative power in Congress, the power to execute laws enacted by Congress in the President, and the power to determine and apply the law in the federal judiciary. Where then, is the source of the vast body of administrative law currently applied by the federal agencies? It has evolved from the recognition by all three branches that Congress cannot legislate so comprehensively as to make all its statutes self-executing, or to enable one simply to go to court to ascertain his statutory rights. Even if that were technically achievable it would impose an intolerable burden on the courts. Thus, Congress and the President have relied upon a variety of governmental agencies to implement the law. Initially they were executive agencies such as the various departments or their constituent agencies, e.g., the old General Land office (now the Bureau of Land Management) in the Department of the Interior, and later independent "commissions," such as the former Federal Power Commission (recently restyled the Federal Energy Regulatory Commission). The principal issue in connection with the exercise of broad powers by such agencies was initially whether Congress had improperly delegated legislative or judicial power to them. The legality of the use of such agencies, however, was early sustained by the Supreme Court, primarily on practical grounds recognizing the essential governmental functions served by administrative agencies.1
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With that brief background, let us turn to the system by which natural resource developers and government agencies interact.
The Administrative Process in Public Land and Water Development.
The fountainheads of federal administrative law as it impacts natural resources development are the "property" and "commerce" clauses of the Federal Constitution. Article IV, Section 3, Clause 2, which empowers Congress "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States", provides the authority for Congressional legislation with respect to federal lands and their resources.2 The commerce clause (Article I, Section 8, Clause 3) provides the jurisdictional base for laws affecting federal water resources development and regulation of non-federal hydroelectric power development, as well as the basic environmental laws governing air, water and other environmental quality regulation.
The evolution of legislation in the fields of public land law and water development aptly illustrates the inevitable trend to the growing influence of administrative agencies.
In the public land field, Congress initially made dispositions of federal lands or resources directly by statutory grant, leaving to the Secretary of the Interior only the largely ministerial duty to determine whether the statutory conditions for the grant had been complied with. The early homestead laws3 and the Mining Law of 18724 are good
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examples. Under the former the Secretary essentially had only to determine whether the cultivation and residency conditions for the homestead grant had been satisfied, a finding usually made on the basis of written "proofs" or affidavits submitted by the homestead entryman.
With respect to the Mining Law of 1872, Congress invited citizens to enter upon the public lands to search out mineral resources and provided that upon the "discovery" of a "valuable mineral" the locator would be entitled to obtain title, i.e., a "patent," to such minerals upon payment of a minimal sum. If the locator chose not to seek title, a valid claim was good against latecomers and disputes between the locator and other claimants were resolved by the courts.
Gradually, Congress abandoned its policy of wholesale disposal of the public lands and began to segregate several categories of federal land from disposition and reserve them for various federal purposes. With respect to the management of such lands, Congress enacted statutes conferring broad authority on the Secretaries of Agriculture and Interior and issuing very general management directives to those officials. For example, in the Organic Act of 1897, which provided general guidelines for the management of the newly created National Forest System, Congress delegated to the Secretary of the Interior authority to "improve and protect the forests..., for the purpose of securing favorable conditions of water flow, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States", "make provisions for the protection against destruction by fire and depredations upon the public forests and forest reservations" and "regulate their occupancy and use and to preserve the forests therein from destruction."5 Similarly, with the enactment of various mineral leasing laws culminating in the Mineral Lands Leasing Act of 1920,6 Congress retreated from the self-executing approach of the Mining Law of 1872 and established a system by
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which specified minerals were to be retained in federal ownership and leased to private developers wholly at the Secretary of the Interior's discretion.
At the same time Congress was moving toward greater delegation of authority to the Secretaries of Agriculture and Interior to make important public land resource disposition and management decisions, a similar trend was taking place with respect to federal development of water resources for various purposes and regulation of non-federal water power development.
Water resource development in the West has evolved through three basic stages. From about the middle of the 19th Century until the turn of the century, water resource development was wholly a matter of private initiative, principally because water diversion projects for irrigation, municipal or industrial use were of modest size that could be financed without governmental assistance. As irrigation projects became more ambitious, Congress in the Carey Act of 18947 authorized large land transfers to the states if they would provide for the construction of the larger works necessary for such development. This deference to the states was short lived, primarily because of the magnitude of the costs involved in such projects. Consequently, in 1902 Congress enacted the Reclamation Act,8 by which the Federal Government undertook to construct the projects necessary to provide the irrigation and other benefits necessary to develop the West and to recoup part of the federal expenditures from the project beneficiaries.
With respect to hydroelectric power development, Congress initially authorized private water power dams on a statute-by-statute basis on navigable streams. Where a project was on non-navigable streams and occupied federal lands, permits for land occupancy were issued by the Secretaries of Agriculture and Interior. This bifurcated approach was consolidated in the Federal Water Power Act of 1920,9 which created the Federal Power Commission (originally composed of the Secretaries of War, Agriculture and Interior but made an independent five-member body in 1930) and authorized it to license water power projects to non-federal applicants pursuant to broad public interest criteria.10
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At this point, it should be noted that the allocation of rights to water, which is not only an important natural resource in itself but is vital to the development of many other natural resources, particularly minerals, is one aspect of natural resources development that is not subject to direct regulation by federal administrative agencies. The right to use water in the West is primarily governed by the doctrine of prior appropriation. In simplest terms, under that doctrine one may obtain a vested property right to the use of water which is superior to all later uses by actually diverting water out of a stream and putting it to a "beneficial" use, for example, in aid of mining. This doctrine originated in the mining camps of the West under loose custom. As the western territories were granted statehood, the state legislatures codified the doctrine in one form or another. Congress, which had the constitutional authority to enact legislation to govern the determination of rights to water on the vast public domain, chose not to impose a uniform federal law on such development and instead deferred to the evolving state law. The early system for determination of water rights was wholly judicial, but was later replaced by administrative permit systems, patterned largely after that first developed in Wyoming. Only Colorado retains a wholly judicial system of water courts for the adjudication of water rights. Even in Colorado, however, each water court acts like an administrative agency in determining water rights.
The Congressional move to delegating broad discretionary management authority to cabinet officers and...
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